Frequently Asked Questions About Medical Cannabis
***The use of Medical Marijuana/Cannabis within the state of California has been conditionally legal since 1996. The text of Proposition 215 follows***
Compassionate Use Act of 1996
Health and Safety Code Section 11362.5
Sec. (1) a-b The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:
(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where the medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.
(2) Nothing in this Act shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.
(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any rights or privilege, for having recommended marijuana to a patient for medical purposes.
(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to the patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.
(e) For the purposes of this section, “primary caregiver” means the individual designated by the person exempted under this act who has consistently assumed responsibility for the housing, health, or safety of that person.
Sec. 2. If any provision of this measure or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of the measure which can be given effect without the invalid provision or application, and to this end the provisions of this measure are severable.
PROPOSITION 215, the California Compassionate Use Act, was enacted by the voters and took effect on Nov. 6, 1996 as California Health & Safety Code 11362.5. The law makes it legal for patients and their designated primary caregivers to possess and cultivate marijuana for thier personal medical use given the recommendation or approval of a California-licensed physician.
SB420, a legislative statute, went into effect on January 1, 2004 as California H&SC 11362.7-.83. This law broadens Prop. 215 to transportation and other offenses in certain circumstances; allows patients to form medical cultivation “collectives” or “cooperatives”; and establishes a voluntary state ID card system run through county health departments. SB 420 also establishes guidelines or limits as to how much patients can possess and cultivate. Legal patients who stay within the guidelines are supposed to be protected from arrest.
HOW MUCH CAN I POSSESS OR GROW?
Under Prop. 215, patients are entitled to whatever amount of marijuana is necessary for their personal medical use. However, patients are likely to be arrested if they exceed the SB 420 guidelines. SB420 sets a baseline statewide guideline of 6 mature or 12 immature plants, and 1/2 pound (8 oz.) processed cannabis per patient. Individual cities and counties are allowed to enact higher, but not lower, limits than the state standard. (See Cal NORML page on local cannabis cultivation limits.) Patients can be exempted from the limits if their physician specifically states that they need more for their own personal use; but beware of physicians offering “cultivation” licenses for large amounts.
In a state Supreme Court ruling, People v. Kelly (2010), the court held that patients can NOT be prosecuted simply for exceeding the SB 420 limits; however, they can be arrested and forced to defend themselves as having had an amount consistent with their personal medical needs.
WHAT OFFENSES ARE COVERED?
Prop. 215 explicitly covers marijuana possession and cultivation (H&SC 11357 and 11358) for personal medical use. Hashish and concentrated cannabis, including edibles, (HSC 11357a) are also included. Transportation (HSC 11360) has also been allowed by the courts. Within the context of a bona fide collective or caregiver relationship, SB 420 provides protection against charges for possession for sale (11359); transportation, sale, giving away, furnishing, etc. (11360); providing or leasing a place for distribution of a controlled substance (11366.5, 11570).
WHO MAY CULTIVATE UNDER PROP. 215?
Patients with a physician’s recommendation and their primary caregivers, defined as, “The individual designated by the person exempted under this act who has consistently assumed responsibility for the housing, health, or safety of that person.” According to a state supreme court decision, People v Mentch (2008), caregivers must supply some other service to patients than just providing marijuana.
As an alternative, SB 420 allows patients to grow together in non-profit “collectives” or cooperatives. Collectives may scale the SB 420 limits to the number of members, but large gardens are always suspect to law enforcement. In particular, grows over 100 plants risk five-year mandatory minimum sentences under federal law.
CAN I STILL BE ARRESTED OR RAIDED?
Yes, unfortunately. Many legal patients have been raided or arrested for having dubious recommendations, for growing amounts that police deem excessive, on account of neighbors’ complaints, etc. Once patients have been charged, it is up to the courts to pass judgment on their medical claim.
A landmark State Supreme Court decision, People vs. Mower, holds that patients have the same right to marijuana as to any legally prescribed drug. Under Mower, patients who have been arrested can request dismissal of charges at a pre-trial hearing. If the defendant convinces the court that the prosecution hasn’t established probable cause that it wasn’t for medical purposes, criminal charges are dismissed. If not, the patient goes on to trial, where the prosecution must prove “beyond a reasonable doubt” that the defendant is guilty. Those who have had their charges dropped may file to have their property returned and claim damages.
In some cases, police raid patients and take their medicine without filing criminal charges. In order to reclaim their medicine, patients must then file a court suit on their own. For legal assistance in filing suit for lost medicine, contact Americans for Safe Access (www.safeaccessnow.org).
CAN I BE CHARGED FEDERALLY?
Under the U.S. Controlled Substances Act, possession of any marijuana is a misdemeanor and cultivation is a felony. A Supreme Court ruling, Gonzalez v Raich (June 2005), rejected a constitutional challenge by two patients who argued that their personal medical use cultivation should be exempt from federal law because it did not affect interstate commerce. Despite this, federal officials have stated that they will not go after individual patients.
Medical marijuana patients are not protected while on federal park land or forest land in California. CalNORML has received reports of campers and those driving through federal land who are searched, charged with federal possession statutes, and had their medicine confiscated. A California medical recommendation is not a defense in federal court to these charges.
WHO QUALIFIES AS A PHYSICIAN?
Prop. 215 applies to physicians, osteopaths and surgeons who are licensed to practice in California. It does not apply to chiropractors, herbal therapists, etc. See a list of medical cannabis specialists. Prop. 215 requires physicians to state that they “approve” or “recommend” marijuana. Physicians are protected from federal prosecution for recommending marijuana by the Conant U.S. court decision.
WHAT ILLNESSES ARE COVERED?
Prop. 215 lists “cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. Physicians have recommended marijuana for hundreds of indications, including such common complaints as insomnia, PMS, post-traumatic stress, depression, and substance abuse.
SHOULD I GET AN I.D. CARD?
Patients are not required to get an ID card to enjoy the protection of Prop. 215. All that is needed is a physician’s statement saying that marijuana is “approved” or “recommended.” However, some police refuse to recognize recommendations and arrest patients anyway unless they have a valid ID card, or one that can be validated. Patients and caregivers can obtain state ID cards through the health departments of the county where they live. Unfortunately, two counties still have not implemented ID cards. The state ID card system has safeguards to protect patient privacy. Police cannot track down patients through the registry. No patient has ever been harassed on account of getting a card.
WHERE CAN I GET MEDICAL MARIJUANA?
Even though Prop. 215 doesn’t explicitly legalize sales, thousands of collectives are presently providing marijuana to patients in accordance with SB 420 and the A.G.’s guidelines.
WHERE CAN MARIJUANA BE SMOKED?
SB420 bars marijuana smoking in no smoking zones, within 1000 feet of a school or youth center except in private residences; on school buses, in a motor vehicle that is being operated, or while operating a boat. Patients are advised to be discreet or consume oral preparations in public.
WHERE CAN I GROW MEDICINE?
Although Prop. 215 allows patients to grow their own medicine, landlords are not legally obliged to allow it. Many cities and counties have passed zoning ordinances that restrict where patients can grow, in some cases outlawing outdoor cultivation altogether. See local policies.
CAN I SELL MY EXCESS MEDICINE?
In general sales of marijuana are NOT permitted under Prop 215. However, SB 420 authorizes legal caregivers and collective/cooperative members to charge for their expenses in growing for others on a “non-profit” basis. Growers who provide for others should either be members of a collective or be bona fide “primary caregivers.”
CAN PRISONERS AND PROBATIONERS USE MEDICAL MARIJUANA?
SB420 allows probationers, parolees, and prisoners to use medical marijuana and to ask a judge to verify their rights. However, medical marijuana is regularly disallowed in jails and prisons.
CAN PATIENTS BE DRUG TESTED AT WORK?
The California Supreme Court has ruled that employers have a right to drug test and fire patients who test positive for marijuana, regardless of their medical use (Ross v RagingWire, 2008). Some employers will excuse patients if they present a valid 215 recommendation. Others won’t. Marijuana use is never permitted in jobs with federal drug testing regulations, such as the transportation industry.
WHEN ARE RECOMMENDATIONS VALID?
Under Prop. 215, a recommendation is valid so long as the doctor says it is. However, SB420 requires ID cards to be renewed annually, and many police refuse to recognize recommendations that are older than a year or so. Courts have ruled that patients must have a valid approval at the time of their arrest, though this can have been oral.
WHAT ABOUT OUT-OF-STATERS?
Out-of-state recommendations are not recognized in CA, though they are in Arizona, Michigan, Montana, Rhode Island. While Prop. 215 arguably applies to anyone with a recommendation from a California physician, most physicians refuse to recommend to out-of-staters.
WHAT ABOUT MINORS?
Patients under 18 should have parental consent.
CAN I GROW OR USE MEDICAL MARIJUANA WITH CHILDREN IN THE HOUSE?
There is nothing in state law against this. However it’s advised to keep your medical marijuana away from children. Make sure that you don’t leave edibles around where kids can get them, and keep gardens away from where they play.
In rare cases Child Protective Services has become involved, mostly in cases with large plant numbers, evidence of sales, neglect, or messy divorce proceedings. In such cases, CPS tends not to be understanding about medical marijuana and can always allege child endangerment.
CAN I OWN OR BUY A GUN WITH A MEDICAL MARIJUANA CARD?
The federal Bureau of Alcohol Tobacco and Firearms sent warning letters to gun dealers in 2011 warning them they could not sell to known medical marijuana users. When buying a gun, you may be asked whether you are a user of illegal drugs and/or medical marijuana.
Answering yes makes you ineligible to purchase; falsely answering no is in principle punishable as perjury. This should not affect current gun owners. Although California law does not prohibit medical marijuana users from having guns, using a gun in connection with an offense such as cultivation or possession with sale can result in additional criminal charges. Users are advised to keep their guns in a location that is separate from their marijuana.
Text of California SB 420:
SB 420 Establishes Prop. 215 Guidelines, Voluntary Patient Identification Card System
Patients Allowed 6 Mature or 12 Immature Plants + 1/2 Pound of Processed Cannabis
A bill establishing statewide guidelines for Prop. 215 enforcement took effect on January 1, 2004. The bill, SB 420 by Sen. John Vasconcellos, was signed by outgoing Gov. Gray Davis just days after he lost the recall election.
SB 420, which reflects a compromise between patients’ advocates and law enforcement, includes controversial new state guidelines regarding how much marijuana patients may grow and possess without being subject to arrest. It also includes a voluntary patient identification card system and other provisions to protect patients and their caregivers from arrest.
The guidelines, which were hotly disputed by California NORML and other patients’ advocates, allow patients up to 6 mature or 12 immature plants and up to one-half pound of dried, processed marijuana. Patient advocates had pushed for more liberal guidelines, such as those adopted by Sonoma County, which allow up to 99 plants in a 100 square foot growing area plus 3 pounds of marijuana. The final guidelines were decided in a last-minute legislative deal by Attorney General Lockyer and Sen. Vasconcellos in order to get the bill passed.
Exceptions to Guidelines
In recognition of the fact that the guidelines are inadequate for many very ill patients, SB 420 allows patients to be exempted from them if they obtain a physician’s statement that they need more.
In deference to local autonomy, SB 420 also allows counties and cities to establish higher – but not lower – guidelines if they so choose. Several localities have done so. It forces more restrictive counties, such as San Bernardino and Fresno, which have heretofore had “zero tolerance” policies, to honor the new statewide minimum standard.
Limits Not Legally Binding on Guilt
Strictly speaking, the guidelines do not constitute hard and fast limits on how much patients may legally have. This is because Prop. 215 specifically allows patients whatever amount of marijuana they need for their own medical use, and Prop. 215 cannot be overridden by the legislature. Rather, the guidelines are supposed to protect patients from arrest, something that is nowhere guaranteed in Prop. 215 itself. Therefore, even though patients who exceed the limits are subject to arrest, they should still be able to defend themselves in court under Prop. 215.
State Establishes Voluntary ID Card System
Identification cards under the state ID card program are issued by county health departments, with registration fees halved for Medi-Cal recipients. Registrations are be valid for one year. There is a 24-hour telephone hotline by which law enforcement can verify the validity of the cards.
The system is designed with safeguards to protect patient privacy like the current San Francisco ID card system. Police cannot identify whether persons are medical marijuana patients by their name or address, but only by a unique identification number appearing on their card.
Persons designated as “primary caregivers” are also be eligible for ID cards. Each patient may designate a single caregiver. Caregivers may receive reasonable compensation for their services. However, cultivation or distribution “for profit” are not authorized.
In a quirky provision, SB 420 forbids caregivers from having more than one patient unless all of them reside in the same “city or county” as the caregiver. This means that no one may be a caregiver for both a spouse and a parent if they happen to reside in different counties. California NORML attorneys believe that this is an unconstitutional restriction on Prop. 215.
Other Provisions of SB 420
- Recognizes the right of patients and caregivers to associate to collectively or cooperatively to cultivate medical marijuana.
- Does not authorize medical marijuana smoking in no smoking zones, within 1000 feet of a school or youth center except in private residences, on schoolbuses, in a motor vehicle that is being operated, or while operating a boat.
- Protects patients and caregivers from arrest for transportation and other miscellaneous charges not covered in 215.
- Allows probationers, parolees, and prisoners to apply for permission to use medical marijuana; however, such permission may be refused at the discretion of the authorities.
- Makes it a crime to fraudulently provide misinformation to obtain a card, to steal or misuse the card of another, to counterfeit a card, or to breach the confidentiality of patient records in the card program