Tip of the Month Archive
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.
Landlords, maybe you’ve been unsure about your rights and responsibilities, and are worried about renting to patients. Americans for Safe Access hears from tenants and landlords regularly and we’d like to clear a few things up!
Unfortunately, in California there are no explicit protections for patients who are tenants; patients who rent are often passed over as tenants or evicted for using the medicine that works best for them. Often, it isn’t because the landlord is passing judgment, but rather they have concerns about civil or criminal liability. While medical cannabis is legal at the state level, there continues to be no medical defense to possession or cultivation of cannabis at the federal level. Landlords sometimes worry that they might lose their property or be held criminally responsible for their tenant’s actions.
Landlords who support medical cannabis should rest easy. ASA has not heard of any forfeiture actions against residential landlords of patients in California; similarly, criminal liability has never been assessed against a landlord renting a residence to a patient. While the risk may seem high, even if a landlord should face civil or criminal charges, there are several successful defenses and legal resources available to landlords.
Now that you know the facts, what should you to rent to patients in California? First, remove any lease language that references violations of federal law. Next, call your federal lawmakers and tell them you support medical cannabis and hope that they will support and possibly co-sponsor the Medical Marijuana Patient Protection Act currently before the House of Representatives. Next, consider advertising vacancies at dispensaries, ASA chapter meetings, patient listservs or chat rooms, or other place where patients can be found. Finally, while negotiating the terms of the lease, be clear about your expectations as a landlord, but take into account the unique needs of patients and ask questions about anything you are unsure of.
Feel free to contact ASA’s legal hotline (firstname.lastname@example.org or 510-251-1856) for more information, and thank you on behalf of patients across the state!
Many patients in California enjoy regular, safe access to medical cannabis. That is a victory; however, hundreds of thousands of patients and providers across the state still struggle daily with the issue of access. If you happen to live in one of the areas where access is still a problem, remember that Americans for Safe Access is here to help!
Local regulations govern much of our daily lives, ranging from whether or not our potholes have been fixed to how, where, and when we can access the medicine our physicians have recommended. Even if you have never participated in local government before, if you find yourself in an area without access, it is time to get involved! If your area has a moratorium, ban, or no regulations related to Medical Cannabis Dispensing Collectives (dispensaries), you hold the power to change it! Get to know the structure of your City Council and Board of Supervisors, attend a meeting, find out who might be a champion, ally, or supporter. Use ASA’s Policy Shop & Activist Training Center to determine a course of action. Legal dispensaries don’t just fall from the sky, they are the work of citizens just like you who worked hard to change their local regulations.
And, finally, if you live in an area that has dispensaries, keep in mind that federal law completely bans the use of cannabis, and if a patient or provider is charged with possession, manufacture, or distribution of marijuana in federal court, they WILL NOT be allowed to mention their illness or their state’s medical cannabis laws during trial, and may end up serving long sentences in federal prison. Call your Congressional Representative AND both of your Senators and let them know that you support the three medical cannabis bills introduced by Representatives Frank, Polis, and Stark; urge your Representative to co-sponsor the bill, and ask that your Senators introduce matching language in the Senate. Help us work toward eliminating the need for monthly legal tips by supporting changing our cities’, counties’, and federal government’s unjust medical cannabis laws!
For more information about the Policy Shop & Think Tank:
For more information about ASA’s Online Activist Training Center:
While your state may recognize your right to use medical cannabis, your insurance company most likely wants to steer clear of the issue. Your insurance carrier will not cover medical cannabis, and asking them to cover it or reimburse you for your expenditures may lead to trouble.
If your health or life insurance companies find out that you use medical cannabis, you may have trouble getting coverage in the future. ASA has heard from many patients who have had medical claims denied, simply because they had used medical cannabis in the past. In addition, ASA has heard from many patients who have been denied insurance coverage because of their past status as a medical cannabis patient.
It is important to stay within the law and have a recommendation from a physician. It is also against the law to hide medical information from your insurance provider. The best way to navigate this sticky situation is to only give the insurance company the information they specifically ask for. Do not volunteer information about your medical cannabis use, and do not ask them to cover your medicine or to reimburse you for expenditures related to your medical cannabis. If they ask you if you use “illegal drugs” it is NOT a lie to say no. Medical cannabis is NOT an illegal drug, it is a medication that your physician recommended and your state provides legal protection for. If the insurance company does not ask you specifically about medical cannabis, do not volunteer that you are a patient, as they may use this information against you in the future.
If you have already run into trouble with your carrier, please let ASA know so that we can help. In addition, if you’ve had a good experience with an insurance provider, please let us know so that we can provide this information to other patients. Please call our legal hotline at 510/251-1856 or email email@example.com
Patients in California can have a primary caregiver who is legally able to assist them in the cultivation, procurement, and use of their medical cannabis. Patients do not have to file any paperwork in order for their caregiver to be protected from legal action. In order to keep your caregiver safe, though, it’s important to understand California law.
The language of California’s law requires that any assistant comes from a “Primary Caregiver.” A primary caregiver is someone who is responsible for more than just the medical cannabis needs of the person they are assisting. Responsibilities can include trips to the doctor, assisting with grocery shopping or other errands, helping with personal finances or a counseling-type role in the patient’s life. Due to the word “primary,” a patient can probably only have one primary caregiver; an exception to this might be a situation where a parent and a spouse are sharing the responsibilities of caring for the patient.
We recommend that your primary caregiver carry a copy of your recommendation to use medical cannabis, as well as a copy of a Caregiver Agreement, which can be found on our website: http://www.safeaccessnow.org/downloads/Sample%20Caregiver%20Form.pdf
While there is no legal requirement to have a Caregiver Agreement, this document can demonstrate to law enforcement that you are doing your best to follow the law.
Patients, make sure your primary caregiver understands their rights and responsibilities, and the two of you may want to take a look at the legal section of ASA’s website so that each of you is prepared in the case of a law enforcement encounter. If either you or your primary caregiver run into trouble or have any questions, encourage please contact ASA’s Legal Hotline at 510/251-1856 x304 or email firstname.lastname@example.org
In California, medical cannabis patients have the right to cultivate their own medicine. Current law is murky on total numbers, so we’ve developed a few tips to help you make good choices and stay safe in your garden.
Patients are allowed to cultivate individually, they are able to have a designated primary caregiver cultivate on their behalf, and/or patients and primary caregivers may cultivate collectively. A cultivation collective in the state of California is a group of patients who have decided to share resources, labor, and medicine with each other. It is up to the collective how to organize and what requirements of each member should be; it’s best to have a collective agreement, as a way to show law enforcement that you are taking all the steps you can to remain within the limits of the law. Check out our collective agreement here: http://safeaccessnow.org/article.php?id=5639
After filling out and signing the collective agreement, make copies of it and post the copies and copies of each member’s recommendation. If a member is a primary caregiver, it’s best to have a copy of the recommendation belonging to the patient they’re assisting as well as a caregiver agreement (found here: http://safeaccessnow.org/article.php?id=5662).
Whether operating as a cultivation collective or on their own, patients and primary caregivers should mind the numbers of plants they are cultivating. While it’s unclear what numbers of plants are “too many,” there are a few things to keep in mind. Patients have to show that they are cultivating just enough to supply their own personal medical use, which is hard to determine. Take a look at your county’s guidelines, which can give you an idea of what law enforcement might be using as a guide. It’s also best to NEVER cultivate more than 99 plants (TOTAL) at any location, as 100 plants triggers federal mandatory minimum sentencing, making your garden much more attractive to federal law enforcement.
Late last month, California State Senator Mark Leno introduced SB 129, an ASA-sponsored bill to protect the employment rights of patients. The bill would prevent employers from firing employees, or prevent them from refusing to hire new employees simply because they are medical cannabis patients. Do not be fooled, however, by the media hype: until the bill passes & is signed into law, your job is still at risk. California patients cannot sue an employer if they were fired or not hired because of their use medical cannabis.
Until the bill passes, 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.
While Senate Bill 129 does not require employers to allow the use of medical cannabis at work, it is a huge step in the right direction. Contact your state Senator today to encourage them to support and/or cosponsor SB 129!
…and remember to keep ASA in the loop—if you or your friends or colleagues have had trouble with an employer due to their status as a medical cannabis patient, call our legal hotline at 510/251-1856 x304 or email email@example.com.
During any law enforcement encounter, it’s important to remember that officers are trained to gather information in a variety of ways. Under the 6th Amendment to the U.S. Constitution, “in all criminal prosecutions, the accused shall enjoy the right [...] to have the Assistance of Counsel for his defense.” A lawyer can help you navigate the ins and outs of the legal system. It can be very easy to waive rights accidentally, and a lawyer can make sure that you preserve all your rights.
It is your right to have an attorney represent you in a criminal case. Once you invoke your right to counsel, all formal questioning by the police must stop.
I want to see a lawyer.
Law enforcement is great at gathering information and will use every trick in the book to get you to open your mouth. Assume that everything they’re telling you is a trick. Then use what you’ve learned and say:
I want to see a lawyer.
Lawyers spend years in school and in practice learning about the law. Even if you know your basic rights, it is still quite easy to incriminate yourself without even realizing it. Ask for a lawyer, and then stop talking.
Even if you have done nothing wrong and have nothing to hide, ask for a lawyer. Flex your rights! For more information on how to deal with law enforcement, check out 10 Rules for Dealing with Police
…and remember to keep ASA in the loop—after ANY law enforcement encounter, call our legal hotline at 510/251-1856 x304 or email firstname.lastname@example.org.
During any law enforcement encounter, it’s important to remember that officers are trained to gather information in a variety of ways. One method is to question you, and they will try any method they can to get you to talk. Under the 5th Amendment to the U.S. Constitution, “No person shall be… compelled in any criminal case to be a witness against himself….”
It is your right to remain silent to keep from incriminating yourself in a criminal case. In order to protect your rights later, you must say:
I choose to remain silent.
It seems a little silly, but that’s what you must do. If you are in custody, it is your right to remain silent, and it’s best to exercise that right and, also, ask for an attorney. Law enforcement is great at gathering information and will use every trick in the book to get you to open your mouth. Assume that everything they’re telling you is a trick. Then use what you’ve learned and say:
I choose to remain silent
And, finally, REMAIN SILENT. Remember that they’re asking you questions because they need more information. It is not your responsibility to help them gather it. Exercising your right to remain silent may keep you from facing charges down the line.
Even if you have done nothing wrong and have nothing to hide, it is your right to remain silent. Flex your rights! For more information on how to deal with law enforcement, check out 10 Rules for Dealing with Police
…and remember to keep ASA in the loop—after ANY law enforcement encounter, call our legal hotline at 510/251-1856 x304 or email email@example.com.
During any law enforcement encounter, it’s important to remember that officers are trained to gather information in a variety of ways. One method is to search you—your pockets, your bag, your car, your home. Under the 4th Amendment to the US Constitution, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….”
It is routine during an encounter for an officer to ask (or tell) you to empty your pockets, take a look around inside your bag, your car, or your home. You have the right to refuse a search. Searches are generally only allowed if they have a warrant, you are under arrest, or they have your permission.
If a cop says “empty your pockets” you can answer “no.” If they look in your pockets anyway, say the magic words:
I do NOT consent to a search.
If during a traffic stop, an officer asks to look around your car, you can answer “no.” Even if they start digging around your car, say the magic words:
I do NOT consent to a search.
If law enforcement shows up at your home, you can step outside, shut and lock the door behind you, ask to see a warrant, and refuse them entry into your home. If they go into your home with OR without a warrant, say the magic words:
I do NOT consent to a search.
Even if they have a warrant, say the magic words…if a judge later decides that the warrant should not have been issued, but you gave permission, then anything found during the search can be used against you. Also, just because they have a warrant doesn’t mean you have to help them search—nothing says “I did NOT consent to a search” like a door that’s been kicked in or a safe that’s been drilled open.
Even if there is nothing incriminating on your person, in your bag, in your car, or in your home, it is your right “to be…secure…against unreasonable searches….” Flex your rights! For more information on how to deal with law enforcement, check out 10 Rules for Dealing with Police
…and remember to keep ASA in the loop—after ANY law enforcement encounter, call our legal hotline at
510/251-1856 x304 or email firstname.lastname@example.org.
Signing a lease means you have read and understand the requirements of the legal contract. Most leases contain specific clauses limiting your landlord's access to the rental property. However, with proper notice, landlords can inspect the property for maintenance needs and to assure you are in compliance with the lease. Closely inspect this clause of your lease and be ready to comply.
Landlords may only enter your premises without permission in the case of an emergency, unless you run a business that is open to the public. Any attempt by your landlord or maintenance personnel to enter your residence without meeting the terms stated in the lease should be firmly but politely refused. Attempts to exclude any person listed on the lease should be immediately reported to your attorney, as your landlord has no right to exclude you from the premises without going through proper eviction proceedings.
Some leases may include prohibitions on use, cultivation and distribution of controlled substances, which likely includes medical marijuana. Be aware that most leases include a clause that prohibits any activity illegal under state OR federal law. If your lease includes this provision, your landlord has the ability to evict you for cultivating OR even medicating on the premises. To avoid confrontation and hassle, be a good neighbor, and quietly go about meeting your medical marijuana needs.
Recently, some news outlets and bloggers have been talking about traveling on planes with medicine. While TSA & airport officials may have stated a relaxing of their own "policy" regarding medical cannabis, note that these officials mention turning patients over to local law enforcement officials.
There are currently 2 California patients who have faced state charges & convictions for flying with medicine. In addition, it's important to remember that there are plenty of opportunities in airports and on planes to interact with federal law enforcement, and there is NO medical defense to possession, transportation, or trafficking charges at the federal level. Federal fines are steep, and these types of charges may also lead to jail time.
It's best NOT to fly with medicine, EVEN if your flight never leaves your home state.
Also, keep in mind that most medical marijuana states do NOT recognize patient status for travelers (except RI, MI, ME, & MT). Just because you are a CA patient, that does NOT make you a qualified patient elsewhere.
For more information, please feel free to contact ASA's legal hotline at 510/251-1856 x304 or email@example.com.
Patients and caregivers are legally allowed to transport medical marijuana in California. Unfortunately, however, patients are still harassed by law enforcement on a regular basis. When you are driving with medicine, it's best to keep it locked in the trunk. If you do have a law enforcement encounter, it is your right to refuse a search. It is also your right to remain silent and not provide information about your possession or consumption of marijuana. If your medicine is found by police, provide the officer with your doctor's recommendation or California ID card (remember, these are the two documents that legally protect you). Travel only with as much medicine as you need, as larger quantities of marijuana tend to make law enforcement uncomfortable. Even well-intentioned law enforcement officers make mistakes about the law sometimes and you may end up having to defend against charges.
If you do have a law enforcement encounter (good, neutral, or bad), please call our legal hotline at 510/251-1856 x304 or email us at firstname.lastname@example.org and include:
During the Democratic primary campaign, then-Senator Obama promised not to use federal funds to go after medical marijuana patients. Later, during the campaign for President, he reiterated this promise. Shortly after his inauguration, dispensaries were raided. Patients and advocates spoke up and let the White House know that voters expected the new President to keep his promises, and he sent his Attorney General and Press Secretary out with messages that raids were a thing of the past.
From February to October, ASA tracked dozens of raids that were executed exclusively by, or with the direct assistance of, the federal government. In October 2009, ASA met with officials from the Department of Justice, and 6 days later a memo was issued by the Deputy Attorney General to the U.S. Attorneys saying that prosecuting patients who are following their own state's medical marijuana laws is a waste of resources.
Since the issuance of this memo, however, laboratories that test medical marijuana in Colorado were raided by the DEA; several medical marijuana patients' homes were raided in Hawaii, several federally-assisted raids and enforcement actions have happened in California and Colorado. There are defendants in California and Colorado facing federal cultivation and possession charges. The federal laws have not changed--marijuana is still illegal under federal law, and no mention of "medical use" is allowed at trial. At least two of the raids we know about were the direct result of media attention. Stay safe and be aware that being the public face of medical marijuana may bring more than you bargained for.
Being on probation or parole can be a very frustrating experience, as intimate details of your life are scrutinized closely by government officials. For probationers, this process starts with prosecutors and judges who seek to impose as a condition of probation that qualified patients may not use or possess marijuana while on probation.
In these cases, the courts of appeal have distinguished between patients who are on probation for offenses relating to marijuana (and other drug use) versus those whose underlying offense was not violent and did not involve the use of drugs or alcohol. For the former, appellate courts have generally upheld probation conditions restricting medical marijuana use on the theory that such conditions are reasonably related to the underlying offense, so they serve a legitimate rehabilitative purpose. By contrast, in People v. Tilehkooh (http://www.safeaccessnow.org/downloads/peoplevtilehkooh.pdf), the court struck down a probation condition prohibiting medical marijuana generally due to its prohibition under federal law because the underlying offense had nothing to do with marijuana.
For parolees, the issue is more clear-cut. As of this writing, the California Department of Corrections has a policy that allows medical marijuana patients to use their medicine while on parole, so long as they provide their parole officer a copy of a state-issued medical marijuana identification card before obtaining possession of the marijuana. A printed copy of this policy, which you can give to your parole officer along with your ID card, can be found at: http://safeaccessnow.org/downloads/CA_Parole_Policy.pdf
ASA has recently had a flood of calls from patients who have been denied employment or been fired from their jobs solely based on their status as patients. Unfortunately, under California law, patients have NO employment protection. Patients can be fired or can be passed over for employment simply because they are a medical marijuana patient.
In a disappointing opinion in January 2008, 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. ASA worked closely with California Assemblyman Mark Leno in passing legislation that would have protected patients; unfortunately, the bill was ultimately vetoed by Governor Schwarzenegger.
If you are having trouble with your current employer or during the interview process for a new job, you can give our legal hotline a call at 510/251-1856 x304. In addition, you can check out our Legal FAQs found on our website at http://safeaccessnow.org/article.php?id=5637.
Part 2 of 2: Possession and Cultivation Guidelines
The California Supreme Court issued a unanimous published decision in People v. Kelly, striking down what it considered unconstitutional legislative limits on how much medical marijuana patients can possess and cultivate.
The county guidelines in place were not totally thrown out, but it's unclear whether patients who do not participate in the state ID program would be protected from arrest. What is clear under Kelly is that patients facing charges for possession of more than their county's guidelines would have a defense of personal medical use. If you are currently facing charges for possession or cultivation that falls outside of your county's guidelines, you can use the Kelly case as a basis for a defense. Kelly does NOT mean that cultivators can grow as much as they want: cultivators, if charged, still need to show personal medical use. In court, the patient or provider would need to come forward with evidence to prove personal medical use.
Be sure to talk with your doctor openly and honestly about your medical needs and delivery method. A patient who ingests cannabis in edible form will need larger quantities for the same relief as vaporizing or smoking. Make sure that your medical records reflect what your personal medical needs are, to ensure that you will be able to adequately defend yourself.
Part 1 of 2: Law Enforcement Encounters
Although the court affirmed that qualified patients and their primary caregivers retain "all the rights afforded by the CUA [Compassionate Use Act of 1996]," law enforcement can still arrest and prosecute if probable cause exists. In keeping with the CUA, qualified patients and their primary caregivers will still have an affirmative defense in court.
What does Kelly mean for patients? There are a few things that remain unclear; what is clear is that holding a state-issued ID card and following the guidelines for possession and/or cultivation will prevent arrest.
The bottom-line: play it safe by applying for the state ID card through your county's Department of Public Health. Otherwise, you might have to defend yourself in court, which can be stressful, expensive, and time-consuming.
It's important to follow the guidelines for the county you are actually in, not just the county in which you live. If you are traveling through another county, or are visiting a dispensary in a different county, you are required to follow that county's laws about plant numbers and the amount of medicine you can possess. If you're unsure about which counties you'll be traveling through, it's best to follow the state minimum, which allows a patient to possess 6 mature (OR 12 immature) plants and 8 oz. of processed medicine. Information about guidelines around the state is available at safeaccessnow.net/countyguidelines.htm, though there are some locations that are considering changes to their own guidelines. It might be wise to contact the county to be sure you are in compliance.
Patients often make the mistake of thinking they are bound only by the guidelines of the county they live in, and, in the event of a law enforcement encounter, end up facing charges. Play it safe, and, if you're unsure, stay under the state guidelines.
Sometimes it's easy to forget that there are areas within California where federal enforcement is almost certain. National Parks, the US Postal Service, DHL, UPS, and FedEx are all closely monitored by the federal government.
Shipping medicine to yourself or someone else is dangerous, as one patient recently discovered. This patient was moving from his home state to California. He didn't want to "waste" the small amount of medicine he had left when he moved, and decided to pack it in with some of the other belongings he was shipping to California.
The shipping service "lost" his belongings for a while. When the smoke cleared, he found out that the DEA had seized all of his belongings. He is now terrified that he'll face federal charges.
Don't risk it. Don't ship your medicine.
Don't ship medicine across state lines, even if it's to another medical marijuana state. Don't even ship it within the state of California. The recent statement by the Department of Justice was not a change in marijuana law, it was just a memo from the DOJ to the US Attorneys' Offices directing them to not waste precious resources prosecuting patients. While this is a step in the right direction, it is not a protection from federal search, seizure, and prosecution.
While patients are not allowed to medicate in a moving vehicle or operate a moving vehicle while under the influence of marijuana, determining what constitutes "under the influence" is far from cut and dry. In alcohol-related DUI cases, blood alcohol levels are set at a threshold and anything over that limit is considered "driving under the influence." Marijuana use presents a more difficult scenario, as baseline THC levels vary based on frequency of use, and whether or not the patient is a prolonged user. Unfortunately, this has led to many patients facing DUI-MJ charges even though they explained at the time of arrest that they had not medicated for 8 or more hours.
We're interested in hearing stories about law enforcement encounters related to DUI-MJ. If you or a friend has had this happen, please give us a call, even if the charges have already been dealt with.
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.
Under California law, a qualified patient with a California recommendation may only possess, cultivate, and transport medicine in California. A California recommendation does not provide an affirmative defense in other states (except in Michigan, Montana, and Rhode Island), so do NOT bring your medicine across state lines with an expectation of legal protection. Also, DO NOT bring your medicine to the airport (even if you are flying within California). Federal Transportation Security Administration (TSA) employees will screen you and, upon finding your medicine, they may turn you over to local authorities for state or federal charges.
You and your doctor have figured out that a good treatment option for your particular ailment is marijuana. You get a recommendation from your doctor and you go along your merry way.
When you are "out and about," whether that's walking around, riding on mass transit, or driving, you have the right, under California law, to carry medicine with you if you are a patient with a recommendation. Be sure to carry a copy of your recommendation with you ANY time you have your medicine with you. Even though you would be able to defend yourself if you ended up being charged, it's easier to just avoid being charged in the first place.
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 California law, so to avoid any hassle, you should always carry this with you. Keep the original document in a safe place, and be sure to always keep a copy wherever your marijuana is present.The State ID program is voluntary, and not yet available in every county. If the program is available where you live, and you have the means to get one, we recommend that you do so. The ID shows law enforcement that your recommendation has already been verified, which is especially useful if you have an encounter at a time when your doctor's office is closed. Information is available at your local Department of Public Health or at http://www.cdph.ca.gov/services/Pages/MMPCounties.aspx.
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."
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.
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.
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.
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.
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."
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.
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.
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.
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 mariju