Criminal Matters: court and charges
You should have a supporter (a friend or relative) contact a bail bondsman to try to get you released. Unless you are able to put up the full amount of the requested bond as collateral to guarantee that you do not flee, you will have to use the services of a bail bondsman. In order to post bond for you so that you can get out of jail, it is likely that the bail bondsman will charge you a fee of nearly 10% of the bond. This fee is payment for the bail bondsman's service, and will not be refunded, even if your charges are dismissed or dropped.
If you get a citation or notice to appear, you have to appear in court. If the criminal court is very far from you, or in another state, you can try calling the relevant county Public Defender's office to see if the court can hold the first hearings without you, or if you are eligible for judgment by mail. You will probably have to attend every court appearance or the judge can issue warrant. In the vast majority of cases, simply faxing or mailing in your recommendation and other documents is insufficient. In any event, if you are unable to make a court date, be sure to contact the court by telephone or mail to let the court know your plans.
If the citation says "on or before" a certain date, call the relevant criminal court if you have questions about appearing on a specific day, or simply walk into court and present your citation to the court clerk to try to get on the docket that day.
Arraignment is when the judge will ask you to plead - Guilty or Not Guilty. Show up well-dressed and early to your arraignment (ideally a half-hour before), and make contact with the Public Defender on duty. Be polite. The Public Defender on duty will only represent you at this appearance, and you will likely receive a different attorney for the duration of your case after pleading Not Guilty.
Bring two (2) copies of each of the following to your arraignment:
Give these documents of the Public Defender, note the quantities involved in your case, and explain that you are a qualified medical marijuana patient. Then, ask the Public Defender to bring your documentation to the District Attorney (D.A.) on duty before your arraignment and ask the D.A. to dismiss the case without even having to plead.
Sometimes this will work and the D.A. will decline to pursue charges. Otherwise, you will be arraigned. If you qualify, you will be assigned a Public Defender to represent you for the duration of the case.
Most Public Defenders are very competent individuals who work hard at their jobs and will represent you intelligently and vociferously. However, some Public Defenders will be hindered in their ability to represent you well by high workloads, lack of knowledge of medical marijuana laws, and active bias against medical marijuana (especially in some of the unfriendlier counties). If a Public Defender is very difficult to work with, you may want to consider switching attorneys, either to a private attorney, or another Public Defender.
Unfortunately, the quality of private attorneys as uneven as that of Public Defenders. While some private attorneys provide excellent representation on medical marijuana issues, other do not, and most private attorneys can be expensive. It is completely up to you as to whether to and when to switch from your Public Defender to a private attorney, but here are some tips to consider:
Here is a list of private attorneys who do marijuana work from the California NORML website. ASA does not endorse the expertise and skills of any of these attorneys specifically and has no control over the list, but it is a useful place to start your search for a private attorney. No matter what, you should find out as much you can about a prospective attorney before retaining them.
Your plea is when you answer Guilty or Not Guilty to your charges. If you want to continue fighting your case, plead Not Guilty. All other pleas as essentially a guilty Plea.
A plea bargain is when you plead guilty in exchange for a pre-arranged sentence. Some attorneys will try to pressure patients into accepting a plea bargain offer. If you were within the local guidelines and had an current recommendation, you can assert your patient status and take your case to trial. If your case is complicated, you should use the following tips to evaluate whether to accept a plea bargain offer.
Ask your lawyer about the following:
Then, compare this information with the plea bargain deal being offered, and take into account:
After your Arraignment, your attorney will representing you at several hearings at which they can argue motions, and set the parameters for trial.
Most cases of patients charged with crimes in California are dismissed long before the trial stage, but if you are dealing with a particularly stubborn judge or D.A., or there are other complicating factors, feel free to email ASA's Legal Services Coordinator and include what steps your attorney has taken so far, and when the trial is set to start. If you are particularly concerned with the knowledge or the performance of your attorney, one of the services that we offer is to have our Chief Counsel reach out to your attorney to confer about trial strategy and general medical cannabis law. If this is something you might be interested in, please also include the name and number of your attorney in your email to the Legal Services Coordinator. We do not have the resources to respond to every request.
Additionally, you should also provide your attorney with a copy of "How to Defend a Medical Marijuana Case".
Call the criminal court that signed the warrant, and ask the court if you can schedule a specific day to come in for your arraignment. Because of the warrant, you may have to agree to put up money as a surety bond when you appear, so make sure you ask about that on the phone. You should also call the county Public Defender's Office to see if they can get the warrant discharged.
If your recommendation is expired or you do not have a recommendation, you should go to a doctor in the hopes of getting a current recommendation son. Your case could still be dismissed.
According to the ASA How to Defend a Medical Marijuana Case manual, a recommendation need not necessarily be obtained prior to the charged conduct, where "exigent circumstances" explain a defendant's failure to obtain a doctor's recommendation before his arrest.
California Health & Safety Code § 11362.5(d) explicitly states that your doctor's recommendation does not have to be in writing. Your attorney may also be able to introduce evidence that you were under an oral recommendation, if your doctor approved your usage of medical marijuana, but no written record exists.
Finally, for patients with expired recommendations, your lawyer should present People v. Windus, a very strong case from 2008. In this case, the Court of Appeal (2nd District) held that a medical marijuana recommendation does not expire after a year, even if the doctor has requested annual visits.
If your Public Defender will not or can not appeal your case to your local Court of Appeal, you can hire a private attorney or represent yourself. Visit the California Courts website and put your city or zip code in the 'Court Locations' box - it will return your appellate district, among other information. Then contact the California Appellate Project office for the First, Second, Third & Fifth, Fourth, or Sixth Districts. However, the Public Defender should at least file your notice of appeal for you.
Except in certain situations, you must file your Notice of Appeal (Misdemeanor or Felony) within 60 days of the judgment on your case. Make sure you look at the California Rules of Court, especially Title 8, Chapter 3, Rules 8.304 & 8.308, to check all of the procedures you must follow. An appeal is not the same as another trial, and you will need to have an appealable issue of law, such as the judge making the wrong decision on a search and seizure (4th Amendment), evidentiary, or due process violation issue.
If you have good evidence that you were not competent when you made your plea, or did not understand the ramifications of your decision, you can try to make a Motion to Withdraw your Plea, although most of these motions are unsuccessful. If you make this decision after your judgment has been entered, then you can appeal the plea using a habeas corpus petition, which should include an appealable issue of law, such as the judge making the wrong decision on a search and seizure (4th Amendment), evidentiary, or due process violation issue.
Here is some information about the expungement of records process and here is a Petition for Dismissal form to use. Additionally, both medical marijuana patients and non-patients convicted of personal use offenses have their convictions automatically erased after two years, according to Health & Safety Code § 11361.5 & 11361.7. In fact, according to § 11361.7(c): "Any person arrested or convicted for an offense specified in subdivision (a) or (b) of Section 11361.5 may, two years from the date of such a conviction, or from the date of the arrest if there was no conviction, indicate in response to any question concerning his prior criminal record that he was not arrested or convicted for such offense."
Actually, while S.B. 420 includes some restrictions on primary caregivers who are less than 18 years old, there are no prohibitions at all on minors getting a recommendation, and it appears that minors have the same rights to assert a medical marijuana affirmative defense in court as any other patient.
A patient who is less than 18 years old is only really restricted slightly in the process that she or he has to go through to get the non-mandatory state ID card. According to Cal. Health & Safety Code § 11362.72(a), when a minor patient submits an ID Card application, the county health department must contact a parent or other person with legal authority to make decisions to verify the accuracy of the information. If the D.A. is making your age an issue, print S.B. 420 for your attorney to present, and note that no recommendation restrictions exist.
See Safe Access Now's list of local guidelines. Any location not listed defaults to the state guidelines of 8 oz. or less of medical cannabis + six mature or 12 immature plants. In collective situations, multiply the applicable guidelines by the number of patient recommendations held.
If your case involves amounts above these guidelines, consider these additional items:
You may be able to correct mistaken law enforcement regarding weight or plant numbers based on improper yield predictions, inclusion of water weight and unrooted clones (non-plants), or you may need medical testimony concerning specific amounts needed for personal use given your condition. The solution is often to get your Public Defender or private attorney to bring in an expert witness to testify in a pretrial hearing. In order to apply to the court to get an expert witness, you can use a motion, found on Chris Conrad's site, called an Ex Parte Application for Appointment of Expert Witness and for Funding and Points and Authorities in Support Thereof. Here is a partial list of common medical cannabis expert witnesses:
The judge may demand that your doctor testify in order to authenticate your recommendation and prove that you are "qualified patient." A court appearance by the doctor is not actually necessary and you should not need to do this to win your case. In People v. Jones, a 2003 CA Appellate Court (3rd District) case, the court held that a defendant's testimony, confirming an "approval" or "recommendation" by a doctor to use medical cannabis, is sufficient, without verification from the doctor, for the jury to determine the defendant's status as a medical cannabis patient.
Instead of forcing your doctor to testify, get your recommendation authenticated and present it at court. You do not even need a notary to do so. Simply get the doctor to sign a declaration of the authenticity of the recommendation as a business record. As a record kept in the normal course of business, your authenticated recommendation should be considered admissible hearsay evidence and should be admitted. The doctor should make a certain number of copies of the recommendation in an envelope, and sign the declaration and tape it to the front of the envelope. For more on the authentication procedure, see the California Evidence Code.
If your judge still insists on a doctor's testimony, it may be helpful if the doctor does make an appearance, or at least creates a secondary affidavit that states that he or she diagnosed you and found it reasonable that cannabis could relieve the symptoms of your condition.
Also, whether it is a doctor's testimony or yours, you should also be able to refuse to disclose details of your medical records or history, as there is established caselaw protecting your medical records and the confidentiality of the doctor-patient relationship in exactly these circumstances. See Bearman v. Superior Cour of Los Angeles (2004).
In addition to the other documentation that you give your lawyer, also print and present Attorney General Opinion 03-411 which states that the Compassionate Use Act also exempts the use of concentrated cannabis (C.C.), or "hash," from criminal sanctions.
Although this is not one of the listed crimes that patients are specifically exempted from in S.B. 420, its omission was clearly not deliberate. The Court of Appeal (4th District) in Garden Grove v. Superior Court (p. 19-20) said that Vehicle Code 23222(b) should not be applied to medical marijuana patients with up to date recommendations. Print Garden Grove v. Superior Court and present it with the other materials to your attorney.
In court the burden of proof will be on the officer to prove that you were impaired.
Generally, most blood and urine tests test for the simple presence of cannabis metabolites and it is up to the jury to determine impairment. If your lawyer is attempting to argue that your ng/ml amount does not constitute impairment, you should give this report on Science-Based Per Se Limits for Driving under the Influence-Marijuana to your attorney. This report suggests that impairment may not occur until 3-5 ng/ml THC in blood.
There are also several studies that show that cannabis use does not raise your risk of road trauma. Present these resources to your attorney:
Because DUI-marijuana cases are often very fact-specific, if your Public Defender does not have any relevant experience, you may want to consider looking at attorneys who specialize in DUI-Alcohol & Drugs cases, if you can afford one.
Police officers should be using the totality of circumstances to evaluate whether a medical cannabis patient is impaired and should be charged with DUI-Marijuana. In an ideal case, the following would all be true:
Share Cal. Health & Safety Code § 11362.765 with your attorney. You and your lawyer should argue that while Health & Safety Code § 11364 is not specifically exempted in S.B. 420, if you are a qualified patient using the paraphernalia to administer medical cannabis to yourself, you qualify for S.B. 420's exemption, and it would be illogical to allow you to possess medical cannabis but not a means to administer it.
Share Attorney General Opinion 03-411 with your attorney. Unfortunately, the law is more complex on this topic than the simple possession of concentrates, and a court may deny you the ability to assert a medical cannabis defense because this statute is not specifically named in S.B. 420.
Additionally, according to an appellate court decision, People v. Niall Bergen, there is a distinction between manufacturing concentrated cannabis 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 concentrated cannabis is almost certainly protected under the medical cannabis laws, whereas chemically manufactured concentrated cannabis may not be.
Presumably, law enforcement found that you have a young child or children, and is asserting that because there was cannabis or plants in the house, you were permitting your child "to be placed in a situation where his or her person or health is endangered," which is criminalized in Cal. Penal Code §273a
You will have to assert that the living environment of the child or children did not endanger their health, that your use of your medicine did not affect your ability to be a good parent, and that you kept your medicine very separate from your children. Here is a list of tips that demonstrate best practices for a responsible patient-parent, and you should highlight any to your attorney that are relevant to your situation.
S.B. 420 also specifically exempts medical cannabis patients from criminal sanctions under Cal. Health & Safety Code § 11366 (Maintaining a place to sell marijuana), 11366.5 (Allowing a building to be used for distribution of a controlled substance), & (11570 (Nuisance of building used for distribution of a controlled substance).
If you have a different California criminal charge related to your use of medical cannabis, contact the Legal Services Coordinator to discuss your situation.
Wait and see whether you receive a citation or notice to appear in the mail. Do not reach out to law enforcement, unless there are exceptional circumstances. In the meantime, try not to obsess over the chance that you might be cited and prepare yourself for court in the event that you are charged. At some point in the future, you may want to call the local superior court, to see if they actually plan to charge you, or if there is a warrant out for your arrest.
You may be able to get your property back. See our Return of Property page for details. Here's some information to help you decide when to file your motion.
If a judge dismissed your charges, you can file a Motion for Return of Property immediately (though there is no statute of limitations). If the DA hasn't yet filed charges, or even if they drop the charges, the situation is more complicated. The DA could file or re-file charges for up to 3 years. In truth, after 6 months, the threat is less. If you were within the local guidelines, or have a written exemption from the guidelines, you are probably safe to file a Return of Property motion. Otherwise, you'll need to weigh the benefits of getting your property back with the risk of the DA filing charges in retaliation.In many cases, law enforcement confiscate non-medical cannabis property, such as money, patients' recommendation, State ID card, medical records or other personal documents, cellphones, cultivation equipment, soil, & lights. Because law enforcement does not usually consider these items to be contraband, it is often easier to patients to retrieve them without court proceedings. You might want to try making a trip to the Police Property Clerk and attempting to negotiate to get these items back more immediately while preparing a Motion for Return of Property to address the confiscation of your medicine, and, if necessary, non-medical cannabis property.
You should consider filing a complaint if law enforcement officers acted against police procedure or treated you particularly harshly or inappropriately, including leaving you in a stress position that inflamed your condition, denying you access to non-marijuana medication, verbally insulting you, or confiscating your medicine even after you showed them an up-to-date recommendation.
In order to discourage the specific law enforcement agency from repeating the inappropriate conduct that you were subject to in the future, you should think about filing a complaint with the appropriate level of government (State, county, local) that oversees that law enforcement agency. ASA actually won a lawsuit against the CHP for their harassment of patients, and we forced CHP to settle and change to a gold-standard police policy. Here is the Citizen's Complaint form to file if CHP has not abided by their policy, and please help ASA track CHP compliance by contacting our Legal Services Coordinator at legalsupport@safeaccessnow.org.
If you instead dealt with local Police Department or the county sheriffs, you will have to do a little research. First Google the website of the police force itself, and do a search on the site for a complaint form (e.g. the Oakland P.D. or L.A. County Sheriffs) or a helpline, which you can call to ask about the complaint procedure (do not give your name at this point, you do not need to until you decide to file the complaint). If that does not yield any information, you can also Google the website of the governing town/city or county, and call them to ask for help.
You should also consider filing a Motion for Return of Property to get your medicine back, and attempting to expunge your criminal records. If many motions are filed, local Superior Court judges may notice the time being spent by these types of cases, and urge law enforcement to stop seizing medical marijuana.
However, you should also know that there is always the possibility that the D.A. will file retaliatory charges as a result your filing a complaint, a motion for Return of Property, or moving to expunge your records. Thus, if you are not prepared to have to go through court to dismiss charges against you, and you do not think you have the evidence to do so, maybe it is best to lay low, and not take any of these actions. However, if you have an up-to-date recommendation, were under the guidelines, and think any possible case against you will get dismissed, that you should strongly consider standing up as an activist and filing these papers.
Because of the immunities that law enforcement often enjoy, it is not likely that you will be successful in obtaining damages as the result of a civil suit, but there are a few cases where patients have won a monetary judgment. For instance, if law enforcement does something like force you to destroy your plants or paraphernalia, you may have the right to sue them to recover damages, as David Williams did with ASA's help, in Butte County. ASA does not have the capacity currently to work on any more of these types of suits, but if you think there is evidence of police misconduct and that it is likely that you have a cognizable civil claim for excessive force or another civil rights violation, you should file a tort claim letter with the governing town/city or county of the law enforcement agency. The tort claim letter must be filed with the appropriate agency no later than six months after the date of the incident (not the end of the criminal case).
After filing the tort claim letter, summarize your claims in a letter of several paragraphs, and shop it to attorneys who specialize in this area of the law. You can look for a lawyer using Martindale.com or trying search terms on Google such as "civil rights", "police misconduct", excessive force" and "lawyer" and "Your Region". Here is a helpful analysis on police misconduct claims by John J. Davis of Pierce, Davis & Perritano, LLP.
Here are some tips if the police are harrassing you.
