Motions to Dismiss
Despite the passage of the Compassionate Use Act (CUA) in 1996, and the
implementation of state senate legislation SB 420 in January 2004, patient
arrests and medicine seizure by law enforcement is still a widespread problem
A defendant may "informally suggest" that the magistrate or superior court dismiss the information or complaint "in the interests of justice" under Penal Code § 1385. People v. Konow (2004) 32 Cal.4th 995, 1022, 12 Cal.Rptr.3d 301, 320. Counsel may do this at any time, even as early as the arraignment, or in connection with a demurrer to the complaint, when the evidentiary foundation is laid through the submission of the doctor's recommendation by declaration under Evidence Code § 1590. More frequently, defense counsel will establish that the charged activity involves medical marijuana at the preliminary hearing and make the informal request under Penal Code § 1385 at that time or in connection with a motion to set aside the information under Penal Code § 995. This may present the best hope for dismissal in cases where the defendant does not meet the technical criteria for the medical marijuana defense, as where the defendant distributed marijuana through a dispensary.
Typically, a defendant's preliminary hearing is the time to argue a motion to dismiss, whereby defense counsel establishes that the charged activity involves medical marijuana, and provides evidence to justify the quantities possessed.