I've been coming around to these forums for years now but only recently just registered. I've noticed there are a lot of misconceptions when it comes to medical marijuana and the legal system in California. This really cleared things up for me, I hope it does the same for you.
Taken from: Proposition 215 and You
PROPOSITION 215 AND YOU
Proposition 215 has created a new exemption from criminal penalties for medical use of marijuana. This brochure will provide a general description of how that exemption applies to Californians (this format was adapted from a handout brochure). It represents the best of our knowledge as of the date printed above. Be sure to speak with a lawyer for an up-to-date interpretation and any specific questions about your own situation.
Prop. 215 does not legalize marijuana. It changes how certain people - medical patients and their "primary caregivers" - will be treated by the State of California's court system. Patients with a doctor's recommendation to use marijuana in medical treatment have a new legal defense available to them.
If arrested on marijuana charges, patients can claim entitlement to an exemption from the law. The burden of proof is largely on the patient, to prove his or her medical need and to prove that marijuana was used with the recommendation of a doctor. Because compliance is so important, take time to understand the new law.
Who is affected by Prop. 215?
Proposition 215 was designed to protect seriously and terminally ill patients from criminal penalties for using marijuana medically. Only people with their doctor's recommendation to use marijuana in medical treatment can take advantage of Prop. 215 as a legal defense against marijuana charges.
A doctor must judge whether marijuana is appropriate for treatment of a specific illness. Most of the people who use marijuana as a medicine suffer from cancer, AIDS, or glaucoma, while some people report that it helps treat symptoms of epilepsy and other diseases in which muscle spasms or seizures are common. But simply having one of these diseases does not automatically qualify anyone for the marijuana exemption under Prop. 215. Only a doctor's recommendation can do that.
For what diseases is marijuana useful?
Marijuana has been used for centuries by doctors all over the world. Some conditions for which marijuana was formerly a common treatment, such as simple pain relief, are now treatable by other, more effective, medications. In other cases, marijuana, alone or in combination with other drugs, remains an effective treatment.
Nausea reduction in cancer and AIDS patients. The most common medical application of marijuana is for the reduction of extreme nausea caused by cancer chemotherapy and AIDS treatment. Patients facing such treatments often find that just a small amount of marijuana - whether inhaled, baked into foods or consumed in liquids - can immediately quell nausea or even prevent its onset. Several scientific studies in the late 1970s and early 1980s showed marijuana's value for reducing cancer patients' nausea.
Increasing appetite. Marijuana also reportedly increases appetite for patients with nausea or other conditions, permitting more normal food intake and preventing dangerous weight loss. This is particularly important to patients with AIDS "wasting syndrome."
Reducing eye pressure in glaucoma patients. Glaucoma is a progressive disease of the eye which can lead to blindness. It results from a buildup of pressure within the eye. Marijuana reduces the pressure within the eye, holding off some of the damage.
Controlling muscle spasms, seizures and chronic muscular pain. Marijuana is also used medically by patients with epilepsy, multiple sclerosis, arthritis, spinal cord injuries and other conditions which are characterized by muscle spasticity, seizures and severe chronic pain.
What about the pill form of marijuana?
There is a pill form of one chemical in marijuana, THC, available by prescription under the trade name Marinol. Marinol's use is currently restricted to only cancer and AIDS treatment.
For some people, Marinol works fine, at least for a while. But for many patients, it is too expensive - costing up to $30,000 a year - or too powerful. Some patients say that this highly concentrated psychoactive drug "knocks them out," as opposed to marijuana in its whole form, which permits dosage to be better controlled, with milder effects.
How do I get a marijuana prescription?
Even though Prop. 215 is now law, it is still not possible to get a standard prescription for marijuana from a doctor. Pharmacies cannot carry marijuana, due to federal laws that ban the drug.
Instead, Prop. 215 permits doctors to make recommendations for medical marijuana use, either in writing or verbally. Never should a marijuana recommendation be made lightly. If you are arrested and charged with a marijuana offense, the doctor may be required to testify on your behalf. For this reason, the doctor needs to be clear about the rationale for the recommendation, and should monitor the patient's progress carefully. It is best to be conservative and cautious in obtaining the recommendation and in trying to keep it valid.
Can a doctor's recommendation expire?
Yes. For as long as the marijuana-recommending physician is in charge of the patient's care, and for as long as the physician continues to believe marijuana is helpful, the patient is protected under California law from criminal penalties for marijuana. However, if a patient changes doctors, or if the recommending doctor changes his or her opinion of marijuana's importance to treatment, the patient may not be protected any longer. Common sense suggests that the recommendation must be current to be valid when used as a legal defense, and therefore should be periodically renewed by the physician.
How can patients buy marijuana?
For the near future, most patients have to rely on the black market for marijuana. The acts of selling or buying marijuana remain illegal, but a patient who possesses marijuana upon a doctor's recommendation is protected from criminal penalties for possession. "Cannabis buyers' clubs" may be an option for some. There is no fully legal means available to buy marijuana, but, in some cities, these clubs operate under some supervision by local authorities. These facilities typically require patients to provide written, verifiable documentation of their physician's recommendation to use marijuana. If the operators are satisfied that a person has a true medical need, they will register the patient and permit that person to buy marijuana at the club.
Can I grow marijuana?
Yes. Under Prop. 215, the cultivation of marijuana plants for the personal, medical use of a patient is permitted. However, the seeds necessary to begin cultivating marijuana are no more legal or available than before. Again, a patient must go to the black market for seeds or seedlings, and the transaction itself is still illegal. Cultivation remains a felony in most cases under state and federal law. A person arrested and charged under state law has the right to use a Prop. 215 defense. Federal agents are believed to be unlikely to arrest and prosecute small-time growers of marijuana for medical use, because small-scale cases are not a high priority to federal law enforcement. Still, prosecutions by federal agencies are possible.
Cultivation guidelines. It is important to take steps to keep any medical marijuana cultivation within the boundaries suggested by Prop. 215. First off, grow no more marijuana than you need for personal consumption. There is no concrete standard for numbers of plants under Prop. 215. Generally speaking, a few healthy plants should satisfy a patient's needs. Do not distribute or sell marijuana under any circumstances to anyone - especially non-patients. Any evidence of distribution puts a person at very high risk. A Prop. 215 defense will not work for someone who distributes or sells any amount of marijuana, because the new law applies only to a patient's personal, medical supply. If prosecutors discover evidence of sale or distribution, they are likely to charge a person with felony counts that could result in years of prison time, regardless of that person's medical condition or medical authorization to use marijuana.
If I'm caught, how does 215 protect me?
If you are caught with marijuana that you are using with a doctor's authorization, you will have a few opportunities to prove that you are a legal, medical user of the drug. Though Prop. 215 does not specifically prevent arrests, police officers are now being trained in ways to determine legitimate medical use versus illegal, social use, when they discover a person with marijuana. You can make a policeman's job easier, and protect yourself, by carrying written documentation of your medical need for marijuana, including a copy of your doctor's recommendation, if it is in writing.
If a police officer has any reason to doubt that a patient is using marijuana -- or cultivating it -- for only personal, medical use, the officer is free to make an arrest. On November 6, 1996, the Attorney General issued broad guidelines for officers to help determine who has a legitimate medical-use claim under Prop. 215. These guidelines can also be helpful to patients. In part, officers have been instructed to ask about or investigate:
the person's status as patient or caregiver, and the documented medical condition of the patient in question;
the name of the physician who has ordered marijuana use; * quantity and packaging of the marijuana; and
the presence of pay/owe documents, weapons, police radio scanners, or other evidence of conduct associated with drug dealing.
If you are a legitimate, medical user of marijuana, and are arrested despite attempts to prove that you are exempt from the law, you will still have opportunities to avoid prosecution.
Most legitimate cases of patients and specified caregivers facing charges for strictly medical use of marijuana should be dismissed before proceeding to trial. Local police investigators or prosecutors ought to be able to determine, from evidence presented by arrested persons, who is and who is not entitled to an exemption from the marijuana laws under Prop. 215. Some cases may go to trial, in which case the patient and physician involved should expect to testify under oath about the reasons for the patient's medical marijuana use.
Who qualifies as a "caregiver?"
Prop. 215 was designed primarily to protect patients from prosecution for medical use of marijuana. However, the new law recognizes that some patients may be in such ill health that a family member or close friend may need to obtain and possess marijuana for that patient. Or, a patient may live with someone who could be subject to criminal or civil charges for the patient's marijuana kept on the same property. In this spirit, so-called "primary caregivers" to medical marijuana patients are also exempted from marijuana charges.
So who is a "primary caregiver?"
The Prop. 215 text defines such a person as "the individual designated by the ... [patient] who has consistently assumed responsibility for the housing, health or safety of that person." The fact that a person must have "consistently assumed responsibility" for the patient's welfare could narrow the definition of "primary caregiver" considerably.
Family members, very close friends and roommates of patients will fit under this definition most readily. The best advice at this time is to be conservative in designating a caregiver or in considering yourself to fit under the new law's definition. Ultimately, a judge may have to decide each case on its individual merits.
Banned activities for marijuana patients:
Prop. 215 does not give a broad freedom to medical marijuana patients to use marijuana anywhere, any time.
Prop. 215 contains a provision ensuring that "conduct that endangers others" remains illegal. Such conduct is likely to include driving under the influence of marijuana, operating heavy machinery, or other similar activities, in which there is a realistic risk that a person's marijuana use could impair judgment and lead to harm to other people. Courts would probably also consider smoking marijuana in public or in the workplace to be a danger to others, permitting sanctions against anyone for doing so.
A warning to all marijuana users:
Prop. 215 was designed to protect a specific class of people - the seriously and terminally ill. It does not apply to recreational users of marijuana who simply feel they get some "medical" benefit. It does not even apply to terminally ill patients who fail to get their physicians' approval. Prop. 215 enables the courts to sort out who is entitled to these new protections, and who is not. Every detail, from proof of illness to the form and reasons for a marijuana recommendation, is a potential weak link in a person's case.
Don't put yourself at risk on a flimsy claim of a medical need for marijuana!
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Although this is very in depth it does not answer some specific questions I've seen asked around the forum. I know a couple commons rumors revolve around the "card", the amount of marijuana you can grow, and the amount of marijuana you can possess. So hope this helps.
Medical Marijuana Cards: There is no "card". As the policy states it is a document featuring all the necessary information for police, dispensaries, co-ops, delivery services, etc. that allows them to identify you as a medical marijuana patient. The document will contain convenient access to "the person's status as patient or caregiver, and the documented medical condition of the patient in question, the name of the physician who has ordered marijuana use". So, pretty simple; no card
.Possession and Cultivation: I noticed there isn't an actual amount mentioned in here as far as growing goes. They say something about "growing the minimum of what you need". Well, heres a brief explanation that should give you a good idea of "exactly" how much you can grow;
Limits under SB420 are: 12 immature or 6 mature(flowering) per patient
Plus maximum possession of cured cannabis of 8 oz. (1/2 lb.)
*Recently the courts have decided these limits are unconstitutional and amounts should be based on the individual patient needs as stated in the original voter initiative.
*Following this court decision state attorney general released his own guidelines for officers which closely matched limits original set in SB420 (12 immature, 6 mature, 8 oz. per patient)
*Counties and Cities ARE allowed to raise the limit of immature and/or mature plants and/or possession, but may not lower these standard limits.
Dispensaries and Co-Ops: As stated in the policy, there are patients, and there are caregivers. Either a caregiver or a patient may open a dispensary, and they may now distribute medications.
Dispensaries and Co-Ops are legally not-for-profit run organizations who accept cash donations for exchange of their medications. So although you are basically buying pot from someone behind a counter, you are actually donating money to their not-for-profit company.
As far as caregivers and patients go, not all of them actually open up their own dispensary. Many people will open a delivery service for medication. I'm not exactly sure how the "not-for-profit" angle works here, but delivery services will also request "donations" from you, rather than directly ask you to pay for the medication. This is quite typical in California; craigslist is littered with people willing to deliver you medication. To find reliable sources for delivery services and dispensaries I like to visit Weed Maps as they are an open source peer reviewed collection of dispensaries and delivery services.
"Prescriptions for Marijuana:" As the policy stated, there is in fact no such thing as a prescription for marijuana, only a recommendation for marijuana under proposition 215 and SB420 by a Doctor.
Caregivers: Under Proposition 215 and Senate Bill 420, a medical marijuana patient may designate a caregiver to be responsible for the cultivation, location, and handling of a patients medical marijuana. A patient may not designate multiple caregivers, however, caregivers may have multiple designators, or patients, for whom they are considered to be caregivers for. For example, a person may be the designated caregiver for 10 patients, therefore, this person now has the right to cultivate and possess 10x the the amount one patient would be allowed to cultivate and possess.
Thanks to Will for this info: "Although a “primary caregiver who
consistently grows and supplies . . . medicinal marijuana for a section 11362.5 patient is
serving a health need of the patient,” someone who merely maintains a source of
marijuana does not automatically become the party “who has consistently assumed
responsibility for the housing, health, or safety” of that purchaser. (People ex rel. Lungren
v. Peron (1997) 59 Cal.App.4th 1383, 1390, 1400.) A person may serve as primary
caregiver to “more than one” patient, provided that the patients and caregiver all reside in
the same city or county."
What this is means is a caregiver must have several responsibilities towards a patient, rather than just cultivate marijuana for them. A caregiver is able to provide care for a patient with or without the use of marijuana, as marijuana should not be the central-standpoint to be considered a caregiver.
Also thanks to Will: " [“A primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided . . . to enable [a patient] to use marijuana under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, . . . shall not, on the sole basis of that fact, be subject to prosecution” for possessing or transporting marijuana]. "
What this means is a person who is designated a Caregiver but does not have a medical marijuana recommendation should not be subject to prosecution. The fact that they are designated a caregiver by a medical marijuana patient provides them with the right to cultivate, possess, and transport marijuana.
Well, hope this clears up the gray area for some of you. Feel free to ask questions and I'll try my best to help you out.
Edited by jbd666, 14 May 2009 - 01:34 AM.
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