San Diego Americans for Safe Access forward:
Medical Marijuana laws in California are very murky. Some Judges have even referred to them as a serpentine roadmap. This article is written by one of our newest San Diego Americans for Safe Access Members, Melissa Bobrow, regarding the legalities of medical marijuana use in California. Although many folks have many different opinions on what is legal and what is not when it comes to medical marijuana, it is our hope that this piece will inspire debate and discussion that will lead to a little more clarity and help patients navigate the serpentine roadmap that makes up our medical marijuana laws.

By: Melissa Bobrow

Hello, my name is Melissa Bobrow and I am attorney in California. I am here to give you, the: patient, caregiver, coop/collective owner, person interested in medical marijuana – some insight into what is happening here in California. After conducting my own research, seeing what other people have blogged, posted on their websites, and attending my first meeting with Americans for Safe Access, one thing became abundantly clear to me – NOTHING IS CLEAR. There is so much confusion amongst dispensary owners, patients, caregivers, and even attorneys. What is and what isn’t legal? What is compliance? What does the federal government have to do with this? I decided to write this article to help clear up some of the basic concepts of this confusing and grey area of the law.

What Does The Law Say?
Good question. First we have to start with a quick Constitutional Law explanation – I promise to keep this quick.

We have several tiers of laws in our country, blah blah blah. Essentially when there is federal law on a subject, the states cannot enact a law(s) that directly conflict with the federal law. Okay, great so why does this matter?

Glad to see you’re paying attention – THERE IS FEDERAL LAW on this subject. It is called the Controlled Substances Act, and it does not like or condone medical marijuana. The Controlled Substances Act classifies drugs – all drugs – into different categories or “schedules”. Depending on how a drug is classified will determine how it can be used, prescribed, purchased, etc.

Marijuana is currently classified as a “Schedule I” drug, which means it is NEVER okay to use or prescribe it under ANY circumstances. We can debate whether this classification is legitimate or not at another time – this is an explanation of what the law is, not an endorsement of what the law should be.

Though many medical marijuana supporters and activists cling to Proposition 215 (Prop 215) and Senate Bill 420 (SB 420) as proof that medicinal marijuana is legal in California, this is not the case. Huh? I thought it was legal. How else can these collectives and dispensaries exist? What about the medical marijuana cards? Don’t they offer me protection? What do you mean it isn’t legal???

Well folks, here’s the deal, it isn’t legal – plain and simple. Well not plain or simple, but since that’s the source of all this confusion, let’s clarify.

If California “legalized” medical marijuana it would be in direct conflict with the federal Controlled Substances Act. Federal law says it is illegal under all circumstances – state law says it is legal under these circumstances. Guess what happens to a state law that is in direct conflict with a federal law??? Well, if the state law is challenged, which the County of San Diego was kind enough to do, the state law would be struck down and the federal law would prevail. In other words, if Prop 215 and SB 420 actually legalized marijuana, even for medicinal purposes, they would conflict with the Controlled Substances Act, and that would be the end of our discussion.

I’m Confused, Then What Do Prop 215 and SB 420 Do?

Prop 215 decriminalized medical marijuana for patients and caregivers and doctors that recommend the use of it. What does that mean? Well these pieces of legislation did not legalize marijuana, that’s for sure. Instead it provided a level of protection – people that fit under the criteria of patient, caregiver or doctor that recommends marijuana, will not be prosecuted for doing so. Prop 215 is a loophole in the law! It’s a brilliant loophole, but you must keep in mind – it is a loophole.

Prop 215 exempted certain people from prosecution for patients and caregivers that possess or cultivate marijuana for personal medical purposes. Just to be clear prosecution is something that happens after you have been arrested.

Essentially, Prop 215 created an affirmative defense. Whoa – legal term, what is an affirmative defense? Well an affirmative defense is when you say: “Yes, I did do that, but it is okay because….” So here it would go something like this: “Yes I did possess “x” amount of marijuana, but it is okay because I have a medical condition and my doctor recommended I use marijuana to alleviate my symptoms.”

SB 420 was written to clean up some of the mess left over from Prop 215 and provide some guidelines for Californians and law enforcement so everyone would know what they are allowed to do. The most important provision to come out of SB 420 was the issuance of State Medical Marijuana cards. These cards let law enforcement know that you are complying with state law and you should not be arrested if you are in compliance with the guidelines.

These cards provide California residents with another level of protection – this time from being arrested in the first place. Patients and caregivers were given “limited immunity” status in Prop 215, and a valid, state issued card to prove their status with SB 420.

It told the Attorney General s/he has to come up with some regulations on this subject. So it set the groundwork for a system that allows patients and caregivers to safely and legally access medical marijuana, cooperatives and collectives some guidelines for how they should incorporate themselves, and a way for law enforcement to figure out who can possess and/or cultivate marijuana. Additionally it allowed collectives and cooperatives to exist so that they are able to provide medical marijuana. Again, SB 420 did not legalize medical marijuana.

Where Are We Now? – Let’s sum up:

  1. There is federal law that makes ALL marijuana illegal for ANY purpose in ANY state;
  2. There is a California statute that says – well it’s still illegal, but we are not going to prosecute this group of people when they use it under a doctor’s recommendation;
  3. This loophole gives Californians state protection, if they are in compliance with the state and local laws;
  4. Even if you are in full compliance with state law, you may still be arrested for possessing and/or cultivating marijuana, but you do have an affirmative defense in court.

Well Where Does That Leave You?
One thing I hear a lot is “The cops can’t arrest me, I have a card”. Guess what – the cops may still arrest you. Law enforcement reacts even slower to change than the legislature, just ask anyone that has lived through any other period in our nations’ history. You may prevail in court, but who wants to go to court? Comply with your state and local laws, never possess or cultivate more than is medically necessary, and always have your doctor’s recommendation AND medical marijuana ID card with you.

Remember it isn’t legal, it has been decriminalized. So be smart, be safe, and be well.

Melissa Bobrow, Attorney at Law
964 Fifth Avenue, San Diego, CA 92101
Email: |Phone: (619) 800-5434

A note from Dr. Dale Gieringer of California NORML:

The thrust of this article, that MMJ is not “legal” in CA, is basically on target.

Technically, however, Prop. 215 is more than an “affirmative defense,” even though the ballot argument for it erroneously stated it as such. Under the State Supreme Court’s Mower decision, Prop. 215 actually confers a “limited immunity from prosecution.” Unlike an affirmative defense, which is tried in court, a limited immunity exempts the defendant prosecution in the first place, if the judge so determines so at a pre-trial hearing (hence so-called “Mower hearings”). Furthermore, the action of possessing or growing marijuana under Prop. 215 does not constitute probable cause for arrest if the defendant presents reasonable evidence that it was for medical use, whereas under an affirmative defense, any possession of marijuana is valid probable cause for arrest. In essence, what the Mower decision says is that the possession or cultivation of MJ under Prop 215 is as legal under CA law as possessing a RX drug with a valid RX. It is not something you can be prosecuted or forced to defend affirmatively.

This distinction is a technical one of more importance to judges than cops, however. In general, patients are well advised to follow Melissa’s advice, which is similar to what we advise patients at Cal NORML.
– D. Gieringer –

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