Many enforcement officers still cite or arrest legitimate medical cannabis patients and their caregivers. When the issue goes before a judge, state or federal, their final ruling is viewed as a legal interpretation of the law. The ruling, in effect, becomes part of the medical cannabis law. However, federal rulings do not have merit in state court. Legitimate patients and caregivers, arrested or cited for cannabis violations despite protections offered by California state law, have been to both the California and United States Supreme Courts fighting for their right to safe and affordable medical cannabis.
(2006): A jury in San Francisco federal court found Oakland resident Ed Rosenthal guilty of cultivating cannabis, conspiracy to cultivate, and maintaining a place where drugs are manufactured. Jurors were never allowed to hear evidence regarding Prop. 215 or Rosenthal's deputization by the city of Oakland to grow medical cannabis. Jurors publicly recanted their "guilty" verdict after finding out all the facts that were left out of the trial. Rosenthal appealed to the Ninth Circuit, which reversed his conviction in April 2006 due to jury misconduct. Click to view the ruling.
(2007): In response to the reversal of Rosenthal's convictions, as well as its dissatisfaction with his one-day, time-served sentence, the federal government re-indicted Rosenthal, this time adding new (and frivolous) charges for money laundering and tax evasion.Because the prosecutor admitted that these new charges were added in response to Rosenthal's statements against the government, the additional charges were dismissed by the court as a form of vindictive prosecution.Rosenthal was, again, convicted of cultivating marijuana and, again, was given a sentence of one-day, time-served.Click here to view the ruling.
(2000): The government was enjoined by the U.S. District Court in San Francisco from punishing physicians or taking their DEA licenses for recommending medical use of cannabis. The ruling states that physicians have a First Amendment right to make recommendations, but may not aid or abet patients in actually obtaining marijuana. Click to view the ruling.
(2002): The Ninth Circuit Court of Appeals held that the federal government could not punish, or threaten to punish, a doctor merely for telling a patient that his or her use of marijuana for medical use is proper. However, because it remains illegal for a doctor to "aid and abet" a patient to obtain marijuana or conspire with him or her to do so, the court drew the line between protected First Amendment speech and prohibited conduct as follows -- A physician may discuss the pros and cons of medical marijuana with his or her patient, and issue a written or oral recommendation to use marijuana within a bona fide doctor-patient relationship without fear of legal reprisal. And this is so, regardless of whether s/he anticipates that the patient will, in turn, use this recommendation to obtain marijuana in violation of federal law. On the other hand, the physician may not actually prescribe or dispense marijuana to a patient, or recommend it with the specific intent that the patient will use the recommendation like a prescription to obtain marijuana. There have been no such criminal or administrative proceedings against doctors to date. Click to view the ruling.
(2001): The U.S. Supreme Court issued a ruling in 2001, which was then used by a federal district court in California to issue a permanent injunction against OCBC, prohibiting it from distributing medical cannabis. In the opinion rendered on May 14, 2001, the U.S. Supreme Court dealt a blow to medical cannabis patients by declaring that a person in federal court may not argue that distribution of cannabis to patients is a medical necessity. The Court was very adamant in its opinion that federal law still criminalizes the use and distribution of medical cannabis. It specifically left open several questions, such as constitutional limitations on federal authority, which will be litigated in the OCBC's pending appeal in the Ninth Circuit. This ruling applied to five other medical cannabis clubs, of which at least one has filed additional appeals not yet heard. Click to view the ruling.
(2005): On June 6, 2005, the U.S. Supreme Court ruled that federal law enforcement officials can prosecute medical marijuana patients, even if they grew their own medicine and even if they reside in a state where medical marijuana use is protected under state law. The decision does not say that the laws of California (or any other medical marijuana state) are unconstitutional; it does not invalidate them in any way. Also, it does not say that federal officials must prosecute patients. Decisions about prosecution are still left to the discretion of the federal government. The Court indicated that Congress and the Food and Drug Administration should work to resolve this issue. The U.S. Supreme Court decision stems from a lawsuit filed on October 9, 2002, by medical marijuana patients Angel Raich and Diane Monson. The lawsuit moved for a preliminary injunction against then-Attorney General John Ashcroft and then-DEA Administrator Asa Hutchinson. The case reached the Supreme Court after Ashcroft appealed the December 2003 federal Ninth Circuit Court of Appeals decision that ruled in favor of Raich. Click to view the U.S. Supreme Court ruling.
(2007): The Ninth Circuit Court of Appeals put what appears to be the final touches on the Raich case on March 14, 2007. In McClary-Raich v. Gonzales, the court addressed the outstanding issues remaining after the Supreme Court's pronouncement that the federal government has the authority under the Commerce Clause to regulate medical marijuana. In particular, the Ninth Circuit held that McClary-Raich: (1) could not obtain a preliminary injunction to bar enforcement of the Controlled Substances Act (CSA) based on common law medical necessity, although she appeared to satisfy the factual predicate for such claim; (2) application of the CSA to medical marijuana cultivators and users did not violate substantive due process guarantees; and (3) the Tenth Amendment does not bar enforcement of the CSA.
Although the outcome was not positive, there was plenty of language in the decision that bodes well for the future of medical marijuana. In particular, with respect to the claim that there is a fundamental liberty interest to use marijuana medicinally, deserving of constitutional protection, the court stated: "We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law as well. But that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is 'fundamental' and 'implicit in the concept of ordered liberty.'" The court continued: "For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected."
Also, although the court found that McClary-Raich could not affirmatively use a common law medical necessity defense to obtain an injunction in a civil suit, it did not foreclose the possibility that a criminal defendant might do so. Click to view the ruling.
(2007): The United States District Court for the Eastern District of Washington quashed a subpoena directed to the State of Oregon to reveal information about 17 patients receiving medical marijuana.The court found that the subpoena issued by the federal government to prove criminal violations against a medical marijuana clinic was unreasonable, since the government did not have strong need for the information and the state would be violating its own laws regarding confidentiality to reveal the information sought, which, in addition, would deter medical marijuana patients from participating the the state's medical marijuana program. Balancing these interests, the court concluded that the subpoena should be quashed. Click to view the ruling.
(1997): The ruling applies retroactively to persons fitting the medical use requirements who were charged before the statute was put into effect. Under Compassionate Use Act, even with physician's recommendation or approval, patient may not possess an unlimited quantity of marijuana. The act can provide implied defense for transportation if the quantity transported, method, time and distance of transportation are reasonably related to patient's medical needs. Click to view the ruling.
(1999): A person arrested for possession or cultivation of cannabis before obtaining a recommendation from a physician for the medical use of cannabis may not use this defense retroactively if a physician's recommendation is obtained after the arrest, unless there is a spectacular explanation. Click to view the ruling.
(2001): In a ruling in direct conflict with the above People v. Trippet ruling, the court ruled that the Compassionate Use Act does not protect transportation of medical cannabis. This means that the state now has two conflicting precedents on this issue. Click to view the ruling. Click to view the ruling.
(2002): Law enforcement officers are not required to abandon a search for marijuana authorized by a search warrant when a resident of the premises produces documents that suggest he has a physician's permission to possess the cannabis. Click to view the ruling.
(2002): This unanimous CA Supreme Court ruling declared that patients and their care providers are entitled to a pre-trial hearing to determine the legitimacy of their medical cannabis defense. If this is established through a preponderance of evidence, the case should be dismissed before going to trial. In addition, the Court ruled that the state must show proof of guilt "beyond a reasonable doubt" in any criminal case. In powerful language, it declared that "possession and cultivation of marijuana is no more criminal - so long as its conditions are satisfied - than the possession and acquisition of any prescription drug with a doctor's prescription." Click to view the ruling.
(2003): This CA Appellate Court ruling holds that a defendant's testimony, confirming an "approval" or "recommendation" by a doctor to use medical marijuana, is sufficient, without verification from the doctor, to establish for a jury the defendant.s status as a medical marijuana patient. Click to view the ruling.
(2003): This ruling criticizes the decision in People v. Bianco (2001) which held that it is within the trial court's discretion to impose a probation condition prohibiting all marijuana use for the offense of marijuana cultivation where defendant was a long-time marijuana user and his marijuana use was found to have contributed to his offense. Instead, the court sided with statutes enacted by SB 420 which expressly authorizes qualified patients to request that the trial court confirm that they may use marijuana for medical use while on probation or released on bail. The court ruled in Tilehkooh that no rehabilitative purpose is served by such probation condition in cases where there is no claim of diversion or violent behavior by defendant). Even if the court imposes a probation condition forbidding all marijuana use, defense counsel should assert the CUA as a defense in any probation revocation proceedings brought against a qualified patient. Tilekooh explicitly rejected the proposition that state courts could enforce federal prohibitions on medical marijuana use for qualified patients as a probation condition. Click to view the ruling.
(2004): The California Supreme Court held that a defendant may "informally suggest" that the magistrate or superior court dismiss the information or complaint "in the interests of justice." 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. Click to view the ruling.
(2005): The Third District Court of Appeal issued a positive decision affirming the legality of collectives and cooperatives, and held that SB 420, otherwise referred to as the Medical Marijuana Program Act, provides for a defense to marijuana distribution for collectives and cooperatives. Drawing from the Compassionate Use Act's encouragement of the state and federal governments to implement a plan for the safe and affordable distribution of medical marijuana to those patients who need it, the court found that the Medical Marijuana Program Act and its legalization of collectives and cooperatives represented the state government's initial response to this directive. By expressly providing that medical marijuana patients are not subject to criminal penalties for cultivation and distribution of marijuana solely by virtue of doing so collectively, the Legislature has abrogated cases such as Trippet, Peron and Young, and established a new defense to those who form and operate collectives and cooperatives to dispense marijuana. Click here to view the ruling.
(2006): The California Supreme Court reaffirmed that the Medical Marijuana Program Act (SB 420) specifically provides an affirmative defense to the crime of transporting marijuana to a qualified patient or a person with a state identification card who transports or processes marijuana for his or her own personal medical use. In addition, the Court found that the amounts of marijuana described in SB420 (8 ounces of dried marijuana and 6 mature or 12 immature plants) constitute a floor, not a ceiling, on the amount of marijuana a qualified patient may possess. Click here to view the ruling.
(2008): After several courts of appeal very narrowly construed what is meant by a "primary caregiver," the California Supreme Court affirmed the Court of Appeal and held that one does not qualify as a "primary caregiver" simply by furnishing marijuana to a qualified patient. The Court did not, however, discuss "collectives," which are entirely different than caregivers. Click here to view the ruling.
(2007): On March 22, 2007, the California Court of Appeal for the First Appellate District issued a published decision in People v. Strasburg, holding that the Compassionate Use Act does not provide immunity from an otherwise justifiable search, such as when an officer smells marijuana. In its words, "[a]n officer with probable cause to search is not prevented from doing so by someone presenting a medical marijuana card or a marijuana prescription." This decision flies in the face of People v. Mower, wherein the California Supreme Court held that probable cause depends on all of the facts and circumstances, including one's status as a qualified patient. Click here to view the ruling
(2007): In a 41-page published decision that strongly affirms the right of medical marijuana patients to possess their medicine without law enforcement harassment, the Court of Appeal for the Fourth Appellate District required trial courts to order the return of medical marijuana that was improperly seized by the police. The court stated that medical marijuana patients are not criminals and, like other aggrieved citizens, are entitled to the return of their lawfully possessed property.Furthermore, the court reminded the police that it is not their job to enforce the federal drug laws.Click here to view the ruling.
(2007): The Court of Appeal for the Fourth Appellate District reversed appellant's convictions for possessing six ounces of marijuana for distribution based on the "expert" testimony of a police officer that a scale, baggies, and small sum of cash evidenced marijuana distribution. The court found that such testimony evinced a lack of understanding of the patterns of use of marijuana by qualified patients, which rendered the police officer unqualified to testify as an expert and required that his testimony be stricken. Click here to view the ruling.
(2008): The Court of Appeal for the First Appellate District found that the police violated the defendant's right against unreasonable searches and seizures when they entered his home without a warrant based only on their observation that someone inside was smoking marijuana. Click here to view the ruling.
(2008): The Court of Appeal for the Second Appellate District held that the trial court improperly denied a medical marijuana defense to the defendant. The court held that the defendant's medical marijuana recommendation did not expire, even though the doctor who issued it required yearly evaluations. The court further held that patients are not bound by the quantities specified in SB 420, but may possess an amount of marijuana that is consistent with their personal medical use. Click here to view the ruling.
(2008): The Court of Appeal for the Third Appellate District (Sacramento) held that the quantities of marijuana specified in the Medical Marijuana Program Act (SB 420) constitute an unconstitutional legislative amendment of a voter-approved initiative. Click here to view the ruling.
(2009): The Court of Appeal affirmed a superior court order denying a man convicted of a firearm offense from using medical marijuana as a condition of probation because he obtained his doctor's recommendation after his conviction. For a copy of the split published decision click here.
(2010): 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. For a link to the decision, click here.
(1997): This case holds that the Compassionate Use Act does not provide a defense for selling marijuana or possessing marijuana for sale. However, bona fide primary caregivers may receive reimbursement for their actual expense of cultivating and furnishing cannabis for the patient.s approved medical treatment. A buyers club that is open to the public cannot be considered the primary caregiver of thousands of patients simply by a declaration on the part of the patient. The definition of "primary caregiver" in the statute is explicit, and it states that a caregiver must be an individual. Click to view the ruling.
(2004): The California Superior Court refused to review an appellate decision blocking the California Medical Board from searching the medical records of Dr. David Bearman and his patient who he prescribed medical marijuana for. The doctor was being investigated for negligence in prescribing marijuana for the patient. The decision protects doctors and patients in possession of medical marijuana from violations of their privacy rights. Click to view the ruling.
(2008): On January 24, 2008, the California Supreme Court issued a published decision denying qualified medical marijuana patients any remedy for being terminated from their employment for testing positive for marijuana for using their medicine off-duty. ASA is currently sponsoring legislation in the California Legislature that will overturn the Ross decision and provide employment protections for medical marijuana patients. Click here to view the ruling.
(2008): In 2006, the Counties of San Diego and San Bernardino challenged California's medical marijuana laws as preempted by federal law. In a published decision, the Court of Appeal for the Fourth Appellate District held that federal law does not preempt the state medical marijuana card program, nor does it constitute an unconstitutional amendment of Proposition 215. Click here to view the ruling.
(2009): In this published decision, the Court of Appeal for the Second Appellate District affirmed a preliminary and permanent injunction against a medical marijuana dispensary as a nuisance because it had not obtained a business license. The court further held that localities were not preempted by California's medical marijuana laws from issuing moratoriums on dispensaries. Click here to view the ruling.
(2010): This case presented the questions of whether SB420, the Medical Marijuana Program Act, forbids California municipalities from banning medical marijuana dispensaries, and whether federal law preempts local dispensary laws. Although the court of appeal did not decide the first question, due to lingering issues about the legality of the collective under state law, it clearly held that federal law does not preempt California's medical marijuana laws governing dispensary regulation -- in other words, state law may preempt local bans on medical marijuana dispensaries without federal law as an obstacle. The California Supreme Court denied review, making final the appellate court's published decision. Click here to view the ruling.
Dale Gieringer, from CA NORML, assisted ASA in compiling the previous summaries of important rulings regarding the California Compassionate Use Act.