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Monthly legal tips to help inform California patients and providers of their legal rights. Please read on for tips to protect yourself and check back monthly for new tips.
October 2009:
The Bottom Line: The Cost of an Expired Recommendation
During these financially trying times, ASA has heard similar stories from several members. Here’s an example:
A patient did not renew her medical marijuana recommendation because she felt she couldn’t afford to pay the $150 fee charged by her recommending doctor. She hoped for the best and let the expiration date come and go. Then, about 6 months later, she had a law enforcement encounter. The officer issued a criminal citation for possession of marijuana based on the fact that her recommendation had expired.
Here were a few of this patient’s options:
1) She could plead guilty and pay the $100 criminal fine; a misdemeanor for possession of marijuana would then be on her record.
2) She could hire a private attorney.
3) She could ask the court to appoint a public defender. Most people who qualify for a public defender are still required to pay a fee; often, the fee is around $100.
4) And, finally, the patient could choose to defend herself and hope for the best.
After she made her decision and dealt with the criminal citation, she realized that she still had to pay the doctor’s fee to get an up-to-date recommendation. She talked about what an immense hassle the criminal citation was, and explained how expensive the whole ordeal turned out to be.
Yes, sometimes doctor’s fees are difficult to pay, and the current medical system might be frustrating, but ultimately, you can save yourself time and money by making a doctor’s appointment before your recommendation for medical cannabis expires.
September 2009:
Traveling and Medical Marijuana
August 2009:
The Paper Chase
When you are “out and about,” whether that’s walking around,
riding on mass transit, or driving, you have the right, under
Many doctors’ offices issue a “card” along with their
recommendation. This card is NOT your
recommendation, and law enforcement often choose not to recognize the card and
still issue a citation for possession. The written recommendation that your doctor issued to you is what
protects you under
July 2009:
County of Butte v. Superior Court
What this means for medical marijuana patients
The California Third District Court of Appeal issued a landmark ruling July 1, 2009, in County of Butte v. Superior Court. After a warrantless search of his home in 2005, ASA filed a lawsuit on behalf of David Williams and six other collective members, who were forced by the Butte County Sheriff to uproot more than two-dozen plants or face arrest and prosecution.
The Court’s decision upholds Butte County Superior Court Judge Roberts' ruling from 2007, stating that patients cultivating collectively "should not be required to risk criminal penalties and the stress and expense of a criminal trial in order to assert their rights." Judge Roberts' ruling also rejected Butte County's policy of requiring all members to physically participate in the cultivation, thereby allowing collective members to contribute financially.
The Court went further to assert that the Compassionate Use Act of 1996 is not simply an affirmative defense to criminal sanctions, but “... an opportunity for an individual to request the same constitutional guarantee of due process available to all individuals, no matter what their status, under the state Constitution. The fact that this case involves medical marijuana and a qualified medical marijuana patient does not change these fundamental constitutional rights or an individual's right to assert them.”
June 2009:
Medical Marijuana Patients in National Parks:
Be Careful This Summer!
National beaches and parks, such as Yosemite, Point Reyes, Sequoia National Park, Ocean Beach and the Channel Islands Beaches, etc. are all considered federal property, despite the fact that these areas are within the physical boundaries of the state of California.
Because these places are deemed federal property, they are patrolled by federal agents that can and will bust anyone for possession of marijuana. This means that even if you are a valid California patient with an up-to-date recommendation from your doctor, you can and will still be cited for possession and have your medicine confiscated by federal law enforcement officers.
Federal law still categorizes marijuana as a Schedule I drug, with high potential for abuse and no proven medical value whatsoever. Possession of over 1 kg of marijuana with no prior convictions carries a sentence of six to twelve months with a possibility of probation and alternative sentencing. Over 2.5 kg with no criminal record carries a sentence of at least six months in jail; with prior convictions, a sentence might be between two to three years in jail with no chance for probation.
May 2009:
How to Respond When Local Law Enforcement Refuses to Uphold CA Medical Marijuana Laws
Although the California Fourth Appellate District unanimously ruled that “it is not the job of local police to enforce the federal drug laws,” patients still occasionally experience harassment from local law enforcement, who claim their particular jurisdiction does not recognize medical marijuana. Don’t let this intimidate you! If you have a current recommendation from your doctor, and do not exceed your local guidelines, you are following CA state law, regardless of the particular city or county in which you reside.
After a negative law enforcement encounter, the most important things a patient can do are to file a complaint against the law enforcement agency involved and to file a Tort claim, if you are interested in pursuing a civil action. Filing a complaint with law enforcement is a relatively easy process, and most of the time you can fill out and submit the complaint online through the law enforcement agency’s website.
If any of your property was destroyed, or the officers used excessive force, you should consider filing a Tort claim for the monetary value of the property, as well as any emotional or physical damage. Visit our website to find several template Tort claims:
If the County Sheriffs were involved: Sample Tort Claim to County Clerk
If the City Police were involved: Sample Tort Claim to City Clerk
Stay in touch with ASA during this process, as we have many resources available to patients and advocates alike and can help address any questions or concerns you have.
April 2009:
What the DMV Policy Change Means For Patients
The California Department of Motor Vehicles (DMV) issued a new policy on March 2, 2009 with regard to how it treats qualified medical marijuana patients. This policy change is the result of a lawsuit filed on November 19, 2008 by Americans for Safe Access (ASA). The DMV Driver Safety Procedure Manual was revised to include reference to medical marijuana, stating that "use of medicinal marijuana approved by a physician should be handled in the same manner as any other prescription medication which may affect safe driving." The manual states that the existence of medical marijuana use "does not, in itself, constitute grounds for a license withdrawal action." However, the policy change does not alter the fact that
PATIENTS ARE NOT ALLOWED TO MEDICATE WHILE IN A MOVING VEHICLE
Even with a valid medical marijuana recommendation, law enforcement officers are still able to cite patients for driving under the influence if they find evidence that the patient was medicating in the vehicle, or medicated recently enough that they were still feeling the effects.
If a law enforcement officer asks you when you last medicated, you do not have to answer. It is up to the officer’s own judgment whether or not you were “under the influence” at the time of the incident. You have the right to tell the officer that you do not wish to discuss that with anyone but your doctor and simply leave it at that.
March 2009:
Medical Marijuana Patients & HUD Rental Assistance Programs (Section 8 & privately owned federally-subsidized)
If you are a medical marijuana patient and reside in Section 8 housing, or another Housing and Urban Development (HUD) assistance program, you are not allowed to cultivate, possess or medicate in your residence. Although valid California medical marijuana patients are allowed to possess and cultivate marijuana in accordance with their county guidelines, HUD programs receive federal funding and have to adhere to federal marijuana laws as a result. This means that anything relating to marijuana poses a very serious risk to patients residing in housing that must comply with HUD regulations. For this reason, patients should not cultivate and should try very hard to avoid possessing and even medicating while in their residence. If you have to medicate in your residence because of your condition, try to use only edibles and/or a vaporizer as opposed to smoking. HUD regulations allow a landlord to evict you for any activity related to any controlled substance, including medical marijuana. In 2002, the US Supreme Court upheld this decision, allowing landlords to evict public housing tenants for "any drug-related criminal activity on or off such premises, by any member of the tenant's household, or any guest or other person under the tenant's control," in Department of Housing and Urban Development v. Rucker. And, in March 2008, the Ninth Circuit Court of Appeals reinforced this decision by upholding a HUD-run Housing Authority's ability to evict patients for medical marijuana related reasons in Assenberg v. Anacortes Housing Authority.
February 2009:
Medical Marijuana Patients on Probation or Parole
As a California medical cannabis patient, in order to be able to medicate while on probation, you should present a copy of your recommendation and print out a copy of People v. Tilehkooh for your probation officer to include in your file. You can explain to your Probation Officer that this case states that medical marijuana patients who were not convicted of marijuana related charges should be permitted to possess, transport, and cultivate their medicine while on probation. If possible, try to create a written agreement with your Probation Officer.
If your Probation Officer refuses to accept your documentation, ask the Public Defender you had for your original offense to request a Probation Condition Modification Hearing. When you appear before a judge, present your recommendation with a copy of People v. Tilehkooh, and ask the judge for an affirmative order to be able to medicate.
As a medical cannabis patient on parole, all you need to legally be able to medicate is a State issued ID card from your county. Copy both sides of the card and give this to your Parole Officer to place in your file, along with a printed copy of the California Parole Policy. According to this policy,
"Parolees who qualify to obtain a medical marijuana identification card to possess a prescribed amount of marijuana for medical purposes shall ensure that their assigned Parole Agent receives a copy of the identification card for placement in the parolee's field file prior to the parolee obtaining possession of the marijuana. The parolee . . . will not be subject to substance testing for marijuana while under the parole custody and supervision of the California Department of Corrections and Rehabilitation."
January 2009:
People v. Mentch: What this means for California Caregivers
On November 24, 2008, the California Supreme Court issued its decision in People v. Mentch, a case centered on a “primary caregiver” defense. The Court ruled against Mentch and found that cultivating marijuana for qualified patients, standing alone, is not sufficient to qualify one as a “primary caregiver.” In order to be a primary caregiver, the Court stated that one must consistently assume responsibility for the housing, health, or safety needs of the patient, independent of supplying the patient with medicine. Advising on strains of medicine or methods of medicating is not enough.
Patients who are interested in cultivating their own medicine, but are unable to do so on their own, should instead look into a collective agreement with another patient, as opposed to a caregiver relationship. A collective is simply a group of patients coming together to cultivate medicine together, and may involve as few as two patients. Ideally, you should have a signed collective agreement between all parties involved, stating that you all agree to come together to cultivate your medicine collectively, but a formal written agreement is not absolutely necessary. Make sure you have this agreement and a copy of each patients’ up to date recommendation posted on the wall or fence of the cultivation site so that anyone who is able to see the grow is able to see the paperwork as well. You can find a sample collective agreement on our website by clicking here.
Please be aware that all marijuana cultivation remains illegal under federal law.
November 2008:
Concentrated Cannabis: Possession & Manufacture
Concentrated cannabis (C.C.) is treated differently under California law than cannabis plants and bud, as different statutes apply to manufacturing and possessing C.C.
Possession/Transportation: Most counties allow you to possess/transport at least 8 oz. of dried marijuana, some counties allow you to possess more. In 2003, the California Attorney General issued Opinion #03-411 stating that C.C. is included within the term "marijuana," as it is used in the Compassionate Use Act. Although it is ASA’s position that a patient may possess a combination of C.C. and bud that is consistent with the local guidelines (e.g., 7.5 oz. of marijuana and .5 oz. Of C.C), there is a risk associated with possessing C.C., as the law is unsettled and law enforcement tend to be biased against C.C. and may escalate an encounter after finding even trace amounts of it. Label your concentrates “For Personal Use”, and only possess/transport an amount you will feel comfortable proving to both a police officer and a jury is reasonable for your personal use.
Manufacturing: Unfortunately, the law is more complex on this topic. According to a recent appellate court decision, People v. Niall Bergen, there is a distinction between manufacturing C.C. with chemicals (e,g, using alcohol, butane, or another chemical solvent) as opposed to manufacturing it naturally (e.g. using pressure, screening, ice water/freezing, butter, or vegetable oil). Naturally manufactured C.C. is almost certainly protected under the medical marijuana laws, whereas chemically manufactured C.C. may not be.
October 2008:
Recommendations, ID Cards & Databases
Does my doctor's recommendation get placed in a federal database that will be used to harass me? How about my state ID Card?
When you get a doctor’s recommendation, there is no database, and no one will know unless you inform them. If you are cultivating as part of a collective, and a copy of your recommendation is on a wall, then you are sharing it with the other members, and if you join a dispensing collective (D.C.), your information will be recorded in the D.C.’s records. While it is technically possible that those records could be seized by the DEA in a raid, ASA is not aware of any case where an individual patient member of a D.C. not supplying said D.C. with cannabis has been harassed solely because of seized patient records.
When you get a state ID card from your county’s Department of Health (http://www.cdph.ca.gov/services/Pages/MMPCounties.aspx) to protect yourself from arrest, your information will go into a state, not federal, database. The state ID card has only a picture and identification number, and not the patient’s name or address, and law enforcement can immediately verify the patient’s status using a 24-hour toll-free number. Your information is to remain confidential and a breach may result in a penalty of 6 months in jail and/or $1,000 fine. This state database should be secure, and your ID card status would not appear in a criminal background check.
September 2008:
What Do the Attorney General Guidelines Mean for Patients?
At ASA, we are very excited about the recent issuance of the Attorney General Guidelines regarding medical marijuana possession and cultivation for individual patients and collectives. Our staff was involved in drafting these recently issued guidelines and we believe that they could be tremendously helpful for patients.
Included in the highlights of the Guidelines, the Attorney General, the highest law enforcement officer in the state, instructs cops not to arrest or seize the medicine of patients who possess less than eight (8) ounces of marijuana and six (6) mature or twelve (12) immature plants and present a valid doctor’s recommendation or state ID card. The Attorney General also requires cops to return marijuana that was improperly seized. In addition, the Guidelines expressly authorize storefront medical marijuana dispensing collectives without limiting the number of collectives to which a patient may belong. Although the Guidelines are not legally binding on the police, you may cite them to an officer who has stopped you for marijuana possession. Let law enforcement know the AG has spoken out for patients. To check out the Guidelines yourself, go to http://www.safeaccessnow.org/downloads/AG_Guidelines.pdf.
August 2008:
CA Medical Marijuana Patients Busted for Less Than 8oz. & 6 plants? Fight It & Get Your Medicine Back!
To fight your citation, you should:
· Be a qualified patient with an up-to-date recommendation during the incident;
· Be charged with (Health & Safety Code) marijuana possession, possession with intent to distribute, cultivation, transportation, or (Vehicle Code) possession in a vehicle;
· Be charged with possessing less than 8 oz. and 6 plants (unless your county guidelines allow more). While you are allowed 12 immature plants, they may mature at different rates, which may complicate matters.
If so, you were acting legally under California law, and should fight your citation until it is dismissed, and demand return of your confiscated property. At your first court hearing, bring copies of your recommendation and explain that, based on your up-to-date recommendation, you acted legally in possessing/cultivating/transporting your medicine, and then present your materials to your attorney and/or the D.A. and judge, and ask that the case be dismissed. Unfortunately, several unfriendly California jurisdictions have forced some patients to take these cases to trial, but otherwise, it may only take 3-5 court appearances. After your arraignment, you and your Public Defender should use the materials on www.AmericansforSafeAccess.org/Legal FAQ-Criminal1 to assert your affirmative medical marijuana defense in a Motion to Dismiss.
Also, visit www.AmericansforSafeAccess.org/returnofproperty, to complete a Motion for Return of Property. When your criminal case is dismissed, politely ask the judge to consider your Motion for Return of Property.
July 2008:
Medical Marijuana & Prop 36: Don't Do It
Sadly, ASA frequently receives calls from patients enrolled in Prop 36 programs seeking to be able to medicate while in the program. The answer, unfortunately, is that the patient is probably out of luck.
Because Prop 36, approved by voter-initiative in 2000, is a program that provides drug treatment instead of incarceration to 1st & 2nd time non-violent adult drug offenders who are charged with use, possession, or transportation of illegal drugs for personal use. Like house arrest, a defendant enrolls in a Prop 36 program in lieu of his jail sentence. Although a qualified medical marijuana patient may appeal to the program supervisor to use her discretion to allow the patient to medicate, success is not likely, since drug treatment is the primary mission of Prop 36 and the administrators may have anti-marijuana biases.
A patient in Prop 36 may also appeal to a judge to allow medical marijuana use while in the program. However, because the Prop 36 statute (CA Penal Code § 1210.1(a)) authorizes judges to impose any other type of appropriate probation condition, in addition to drug testing, judges are unlikely to allow for medical marijuana use.
A patient who is considering pleading guilty and accepting a Prop 36 (or any other diversion) program in lieu of a jail sentence should consider whether he can go without his medicine for the duration of the program before taking any deal.
June 2008:
People v. Kelly: What Does it Mean to Me?
On May 22, in People v. Kelly, the CA Court of Appeal for the 2nd Appellate District overturned defendant's conviction for possessing 12 oz. of marijuana. At trial, the prosecutor had successfully argued to the jury that Kelly's possession of the marijuana was illegal because he had exceeded the "caps established by Health & Safety Code § 11362.77 of S.B. 420" without a relevant doctor's exemption. The appellate court reversed the conviction because it found that the S.B. 420 guidelines were "caps" on the amount of marijuana a patient may possess and such "caps" were an unconstitutional amendment of Proposition 215.
This is a published decision, but it is likely that the CA Attorney General will file a request for review by the CA Supreme Court. It is ASA's position that the court achieved the right result (overturning the conviction), but used the wrong reasoning. While the S.B. 420 quantities would constitute an unconstitutional amendment of Proposition 215 if they limited the amount of marijuana a patient could possess, the California Supreme Court found, in People v. Wright, that the quantities are not "caps," but rather thresholds, and therefore not an unconstitutional amendment of a voter-approved initiative.
While this is a positive ruling for patients, and it demonstrates that another appellate court is willing to stand up for us, patients should not rely on this decision and everyone should continue to obey their county's guidelines, and obtain any appropriate exemptions.
May 2008:
Cultivation with Multiple Recommendations: Caregiver v. Collective?
Part 2 of 2: the Collective/Cooperative Model
As a medical marijuana patient, you may only cultivate enough marijuana for your personal medical use. The exception to this rule is if you serve as a caregiver for other patients, or, alternatively, cultivate as part of a collective. While many patients currently use the caregiver model, it may be more appropriate for them to cultivate collectively.
According to Health and Safety Code § 11362.775, patients may associate collectively or cooperatively to cultivate marijuana for medical purposes without state criminal sanctions. There are many models for medical marijuana collectives, all of which involve members contributing labor, funds, and/or materials, in exchange for a share of the medicine. Unlike the caregiver model, collectives do not require members to demonstrate that they provide for the non-marijuana health needs of other patients.
When forming a collective, all members should sign an agreement and provide their physician's recommendations (see www.safeaccessnow.org/LegalFAQ-Civil4 for a template). Post these documents near the collective cultivation site.
Under California law, each qualified patient may cultivate and possess at least 6 mature or 12 immature plants, and 8 oz. of dried marijuana (or a greater threshold in some localities). Therefore, a collective may cultivate and possess these amounts, multiplied by the number of members.
Be aware that marijuana cultivation remains illegal under federal law and, since federal statutory minimum sentences are triggered at 100 plants or 220 lbs. of medicine per cultivation site, you are more likely to attract the attention of federal authorities if you exceed these quantities.
April 2008:
Cultivation with Multiple Recommendations: Caregiver v. Collective?
Part 1 of 2: the Caregiver Model
As a medical marijuana patient, unless you have a written exemption from your doctor, you should try to cultivate and possess less than your local or county guidelines. The exception to this rule is if you serve as a caregiver for other patients, or, alternatively, cultivate as part of a collective.
Acting as a caregiver has far more stringent requirements than cultivating in a collective. While the current requisites for being a primary caregiver are the subject of a case pending before the California Supreme Court (People v. Mentch), it is likely that the Court will find that a caregiver, in addition to providing medicine, must assist patients in matters of personal health and well-being, which may include: advising on strains, helping patients get to health care appointments, shopping for food and personal care items for home-bound patients, arranging safe housing, helping with rental applications, assisting with a move, organizing social outings and special events, gardening, pet care, household chores and other typical, attendant-style care. It is also helpful to have a signed agreement between the patient and caregiver, (see the template at aboutmedicalmarijuana.com/PDF_files/caregive.pdf). As a caregiver, post your signed agreement and all recommendations near your plants and medicine. S.B. 420 also states that you may not serve as a caregiver for more than one patient outside your county.
Note: Many people who think they are caregivers solely by providing medicine likely do not qualify under California law and may wish to consider forming a collective instead.
March 2008:
Employment Rights and Medical Marijuana: post-Ross v. Raging Wire
Part 2 of 2: Pre-Employment Situations
In the disappointing January decision, Ross v. Raging Wire, the California Supreme Court determined that medical marijuana patients cannot state legal claims for damages under the Fair Employment and Housing Act or on public policy grounds for retaliation from employers for testing positive for marijuana. Unfortunately, employment discrimination against medical marijuana patients remains a widespread problem. What does this mean for you?
If you are a patient applying for a new position, you do not have the right to refuse a "pre-employment" drug test, which may occur several weeks after you start working. If you are concerned about failing the test, you can educate your employer, using the negotiation letter found in our Legal FAQ on our website. You may also attempt to negotiate when you will be required to take the test. Note that most employment drug tests do not differentiate between marijuana and Marinol.
If your employer retaliates against you for being a medical marijuana patient, you can still file a complaint with the Department of Fair Employment and Housing, but know that it is a mostly symbolic statement, as it is almost certain no action will be taken under current law.
February 2008:
Employment Rights and Medical Marijuana: Post-Ross v. Raging Wire
Part 1 of 2: Currently Employed Patients
In the disappointing January decision, Ross v. Raging Wire, the California Supreme Court determined that medical marijuana patients cannot state legal claims for damages under the Fair Employment and Housing Act or on public policy grounds for retaliation from employers for testing positive for marijuana. Unfortunately, employment discrimination against medical marijuana patients remains a widespread problem. What does this mean for you?
If you are a patient who is in a non-safety-sensitive position, and your employer has no probable cause to administer a drug test (such as your involvement in an accident or injury), and you have not previously agreed to drug testing as a condition of your employment, then you may refuse to take a drug test when asked by your employer. If you are retaliated against for doing so, you may have a legal cause of action.
If your employer retaliates against you for being a medical marijuana patient, you can still file a complaint with the Department of Fair Employment and Housing, but know that it is a mostly symbolic statement, as it is almost certain no action will be taken under current law.
The ray of hope for patients is that ASA is working with California Assemblyman Mark Leno to pass legislation that codifies employment protections for medical marijuana patients into law.
January 2008:
How to Handle a Law Enforcement Encounter: Driving in Your Car
Part 3 of a 3-part series on Law Enforcement Encounters
As a medical marijuana patient, you may legally transport your medicine under California law, but the risk of a police interaction remains. Ideally, when transporting medicine, obey all traffic laws, securely lock your medicine in the trunk in a sealed container that limits odor, and do not transport any partially consumed medicine in the vehicle.
It is very important to pay attention to the county guidelines regarding the allowable amount of medicine you may possess. These can be found at safeaccessnow.net/countyguidelines.htm. When planning your trip, identify all counties through which you intend to travel, and, if possible, do not transport more medicine than the most conservative county guideline allows (in many counties, this will be the default guideline of 8 oz. of dried marijuana and 6 mature or 12 immature plants).
Do not medicate immediately before or while driving, as it remains illegal to drive while "under the influence" of marijuana, and police often charge patients with DUI-MJ as a form of harassment.
If you are stopped while driving:
- Do not consent to a search
- Assert your right to remain silent and DO NOT provide unsolicited information about your patient status, possession of medicine, or the last time you medicated.
- If marijuana is found, assert your patient status and provide your recommendation and/or State ID card.
December 2007:
How to Handle a Law Enforcement Encounter: In Your Home
Part 2 of a 3-part series on Law Enforcement Encounters
Though medical marijuana was legalized ten years ago, if you possess or cultivate medicine in your home, you continue to be at risk of a police interaction. If you cultivate, post all copies of all recommendations, state ID cards, and caregiver agreements in your garden, and try to stay under your county guidelines, as your condition allows. Keep copies of these documents near your processed medicine as well. If there are children in the house, ensure that all medicine (including cannabis butter) is secured by lock and key and inaccessible.
If law enforcement knocks on your door, step outside and close the door behind you while the officers explain their intentions. Do not leave the door open. Then, ask for a search warrant, and do not let officers in without one. If the officers present you with a warrant, make sure it includes the correct address, a relatively recent date, and a judge's signature before allowing them to enter.
Once the officers are in your home, with or without a search warrant, say, "I do not consent to a search." You need not answer any questions except to present your recommendation and state ID card (if you have one) to explain any possession or cultivation that the officers discover.
November 2007:
How to Handle a Law Enforcement Encounter: Walking Around
Part 1 of a 3-part series on Law Enforcement Encounters
When walking around with your medicine, be discreet: try not to medicate in open view. Do not medicate in any place where smoking is prohibited by law or within 1,000 feet of the grounds of a school, recreation center, or youth center. Carry a copy of your recommendation and state-issued ID card with you whenever you have your medicine.
If an officer approaches you, do not mention marijuana or your patient status unless marijuana has been found, at which point present your documentation and continue to not provide extra information. If the officer engages you in casual conversation, you only need to give them your name and your driver's license. Ask if you are being detained, and if not, walk away. If the officer detains you, ask why! Make them cite the law (and remember what they say).
If the officer asks, "Do you mind if I search your person, or look in your purse or bag?" respond, "I do not consent to a search." If you are arrested, say "I choose to remain silent and I want to see a lawyer." (Remember to then remain silent).
October 2007:
Medical Marijuana and Landlord/Tenant Law
Medical marijuana patients' rights under landlord/tenant law remain unresolved. While a qualified patient is entitled to possess at least 8 oz. of medical marijuana AND 6 mature OR 12 immature plants, California law does not specify where cultivation is appropriate. Unfortunately, some landlords, upon learning of a tenant's patient status, possession, or cultivation may even threaten eviction.
After a negative interaction with a landlord regarding medical marijuana, try to negotiate and use the letter found on our website. If your landlord has asked you to remove your plants, explore cultivating in an alternate location. Explain that you are a medical marijuana patient, and that you are legally allowed to possess/cultivate/medicate in California. You may want to inform your landlord of your condition, and how marijuana specifically helps you. Note that some landlords must rent to patients for California's medical marijuana laws to have any meaning. If cultivating, assuage any fears your landlord might have about possible damage to the apartment. As a last resort, inform the landlord that you intend to file a complaint with the DFEH if evicted. While you may ultimately leave, use the negotiations to win helpful concessions from the landlord, such as a 6-month extension of the lease and/or moving expenses.
September 2007:
Tips for Safer Cultivation
Prop 215 & SB 420 guarantee qualified patients the right to possess, cultivate, and transport their medicine & plants. However, in practice, patients who cultivate often tend to run afoul of landlords, neighbors, and law enforcement because of ignorance of the law, willful refusal to enforce it, and patient irresponsibility. Here are some tips for safer cultivation to assist in avoiding confrontation.
- Cultivating indoors is safer because it avoids nosy neighbors and reduces risk of theft.
- Post all recommendations in plain view and try to stay under the local guidelines, as your condition allows. Keep a copy of your medical records and paperwork off-site.
- If you need to exceed the local guidelines, ask your doctor for a written exemption on your recommendation.
- Fewer plants attract less attention from thieves and hostile law enforcement, so grow what you need. Compost or eliminate trash offsite.
- Use extra odor-control methods during harvest to avoid offending neighbors.
- 1 (or more) Caregiver(s) + 1 Patient may collectively cultivate only what the 1 recommendation authorizes.
- Regarding the Default County Guidelines (8 oz. of medicine + 6 mature OR 12 immature plants), please note that 1 patient may possess EITHER the mature plants OR the immature plants. Thus, it is safest to cultivate only what will produce an expected yield of mature plants that remains within the guidelines.
- When cultivating collectively, count the recommendations and DO THE MATH to determine your capacity of mature or immature plants. The DEA is more interested in sites that exceed 99 plants.
August 2007:
What To Do During a Federal Raid
Medical marijuana remains illegal under federal law and the DEA has stepped up its attacks on Medical Marijuana Dispensing Collectives ("MMDC's"). If you are present during a federal raid, here are some strategies to consider.
Inside the MMDC:
Stay quiet. When addressed by a DEA agent, present your driver's license and say, firmly but politely, "I will remain silent, I want to speak to a lawyer." Feel free to repeat if queried. We are unaware of even a single arrest of a patient who does not work at an MMDC solely as a result of a federal raid.
Outside the MMDC:
Non-arrestable Action:
- Call people to join you outside the MMDC.
- Inform the press that the DEA is arresting the sick.
- Display signs supporting safe and legal access to educate press and onlookers about DEA actions. Chanting is optional.
- Keep moving as you protest, if near the entrance.
- Do not medicate near DEA agents.
- Take notes on police interactions and note participation of local officials. Photos and video are best evidence.
Arrestable Action (Non-violent civil disobedience)
- Every person should consider his/her own conscience before engaging in civil disobedience.
- Patients engaging in non-violent civil disobedience may choose to use their bodies to block the entrance to the MMDC, police vehicles, or the sidewalk.
- Note that you can be convicted of "assaulting an officer" for almost any touching of an officer or her vehicle.
- Stay in front of police officers, as they may feel threatened if approached from behind.
- If you are in a standoff with the police, sit, as it is easier to hold your ground.
- Go limp if the police seize you to arrest you.
July 2007:
Child Protective Services (CPS) & Medical Marijuana
Sadly, being a parent who is a law-abiding medical marijuana patient can be a scary thing. Across the state, CPS agencies enter the homes of qualified California medical marijuana patients, remove their children, and require the parents to take unnecessary drug therapy courses solely based on their status as medical marijuana patients.
ASA takes this issue very seriously, and is working on strategies to better protect medical cannabis patient-parents. In the meantime, here are some precautions that patients might take to demonstrate to CPS that their use of medical marijuana has not affected their ability to be good parents.
- Keep all medical cannabis out of plain sight, ideally in clearly labeled medicinal jars and with other prescription medications, in a place that small children cannot access. If you choose to cultivate, secure the garden in a locked room or devise another way to deny access to children.
- If you cook with medical cannabis, clearly label any resultant food products as medicinal, and keep them similarly far away from any children's food.
- Use discretion when medicating, and do not do so when children are present or in the view of persons who might be looking for a reason to report you to CPS.
- If your children can understand, specifically explain to them that the marijuana is your medicine and that is not for them (much like any other prescription medications). Furthermore, let them know that it is a private matter, like any other medical information.
- In a dual-parent household, work out a routine with your partner where one parent is always unmedicated in case any unexpected issues arise.
- Never drive with your children in the car after medicating.
- You have no reason to inform CPS that you are a medical cannabis patient, unless directly asked. Do not volunteer such information without cause.
June 2007:
Medical Marijuana Edibles and the Law
Americans for Safe Access has received many reports from patients and dispensaries that law enforcement considers edible medical marijuana products to be illegal. Unfortunately, this is an incorrect interpretation of the law. California Health & Safety Code Section 11018 defines "marijuana" as "all parts of the plant Cannabis Sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin." (emphasis added.) In 2003, in order to clear up confusion around the legality of concentrated cannabis, the California Attorney General (AG) issued a legal opinion on the matter. The AG concluded that Proposition 215, the Compassionate Use Act of 1996, included concentrated cannabis within the definition of marijuana, and that patients and providers should be protected from criminal sanctions.
In addition, with the passage of SB 420, the Medical Marijuana Program Act, by the California legislature, patients and caregivers are explicitly protected from criminal liability. One of the criminal statutes exempted in SB 420 for patients and caregivers, Health & Safety Code Section 11357, includes reference to concentrated cannabis. Problematic interactions with law enforcement may not be avoidable, but things to can do to lessen that likelihood include ensuring all edibles in your possession are well wrapped and clearly labeled "for medical use." If you produce edibles yourself, ensure that: a) the ingredients and finished product are out-of-reach of children and people who are neither patients not caregivers; b) the facility and tools used to produce the edibles are clean and sanitary (consider compliance with local and/or state clean room requirements); and c) the packaging of edibles does not violate copyright laws nor unduly attract the attention of youth.
May 2007:
Inform Your Physicians of their Rights
Many physicians avoid writing medical marijuana recommendations for fear of legal consequences. It is important for patients to educate and inform their physicians of their rights.
Based on a federal Ninth Circuit Court of Appeals ruling in 2002, physicians can recommend medical marijuana to their patients without fear of reprisal from the government. The court's decision in Conant v. Walters recognized the First Amendment rights of physicians to recommend, but not prescribe, marijuana for medical use. Physicians are also not allowed to instruct patients on how to obtain medical marijuana, as that would constitute "aiding and abetting." Because of Conant, physicians are constitutionally protected even if a recommendation is issued in a state without a medical marijuana law. These protections, however, may not extend to patients if they live in such states.
In California, the State Legislature passed SB 420 and defined a "physician" to be "an individual who possesses a license in good standing to practice medicine or osteopathy issued by the Medical Board of California or the Osteopathic Medical Board of California." This means that patients cannot obtain qualified recommendations from psychologists, chiropractors, acupuncturists, herbalists, and other alternative or non-allopathic practitioners. However, you should know that psychiatrists are licensed to practice medicine and therefore qualify to recommend medical marijuana. To determine if your physician is in "good standing," contact the Medical Board at www.mbc.ca.gov or 916-263-2382.
April 2007:
Medical Marijuana and Driving Under the Influence
Even though transportation of medical marijuana is legal under state law, it is still illegal to drive while "under the influence" of marijuana. Police that are hostile toward medical marijuana patients will often use a "driving under the influence" (DUI) charge as a form of harassment. Therefore, it is important that you take precautionary measures when driving. These measures include: not medicating immediately before or while driving (it's illegal); not keeping partially consumed marijuana in the vehicle; keeping any marijuana locked in the trunk; not admitting to being a patient or in possession of medial marijuana unless asked (you are under no obligation to provide such information); and, most important of all, not indicating to an officer the last time you consumed medical marijuana.
Once you indicate that you consumed medical marijuana regardless of how recently, it becomes subjective judgment by the officer as to whether you are "intoxicated," and therefore unable to drive. You are under no obligation to tell the police the last time you medicated and you should refrain from doing so. If a police officer initiates the process of investigating your sobriety/intoxication, there are options available to you. There is no breathalyzer for marijuana; you may be told to take a "field sobriety test" (FST), urine or blood test. Since traces of marijuana will remain in urine for as long as 30 days, and in blood for 1-3 days, neither of these tests will define a window of "toxicity" narrow enough to provide solid evidence of impairment to convict in court. You can also refuse to take these tests, but you will likely have to submit to one of the three. If the FST is chosen, make sure that you will not appear impaired because of your medical condition. If you are confident that you will pass an FST, you may want to request that the test be filmed, eliminating the possibility of biased testimony by the officer.
March 2007:
Your Rights as a Worker and a Medical Marijuana Patient
Unfortunately, medical marijuana patients are currently discriminated against at the workplace. If you apply for a job at a company that bases your prospective employment on a negative test for marijuana, an employer is within their right to refuse you employment. This unfair practice is in part the result of a California appellate court ruling in Ross v. RagingWire, which allows employers to fire or refuse to hire medical marijuana patients. Americans for Safe Access (ASA) joined the lawsuit, and it is currently pending before the California Supreme Court. Through this case, ASA will fight for the right of patients to work free from discrimination.
In the meantime, precautions should be taken with your existing or prospective employers. As an employee, a patient does not have to consent to a test for marijuana even if a random drug test agreement was signed. In the event of a marijuana test, it may be helpful to indicate to the employer that you are a qualified patient and that you will fail the test if taken. As a prospective employee, you can either be up front about your patient status and risk possible discrimination, or seek out employers that don't test for marijuana. Stay tuned for progress in the Ross case, and read more about it in our medical marijuana brief bank.
February 2007:
Are Patients Protected Outside of the Medical Marijuana State in Which They Reside?
The answer to this question may surprise many patients. Even though patients may reside and benefit from protections in any of the 11 states where marijuana is legal for medical use, patients cannot leave their state of residency and expect the same protections in other legal states. For instance, if a California patient flew to Nevada (both legal states), and was cited by local law enforcement for possession of medical marijuana, the same protections provided in California to that patient would not be available to her in Nevada.
A recommendation signed by a California physician is only good in California courts.
The same goes for all other states except Montana. The medical marijuana law in Montana allows for reciprocity with other states. In other words, if a medical marijuana patient from any le