Q: I was arrested for marijuana possession. Since I have a physicians California medical marijuana recommendation, I was able to get the charges dismissed, but the police are still holding my marijuana. Do they have the right to keep it, even though my case was dismissed? Is there a way to get it back?
A: Generally, yes. In California, if a person has a physician’s recommendation for medical marijuana, they have a right, under state law, to possess, cultivate and use cannabis to the extent permitted by law. California Health & Safety Code §11362.5. This means the cannabis belongs to the patient just as any moveable property, and cannot be taken away by law enforcement without probable cause to believe it is not lawfully possessed or cultivated.
A California court’s authority to return property to an accused generally may stem from several other laws, such as California Penal Code §§ 1417.5 (providing for return of exhibits in criminal case); 1540 (restoration of property that was wrongfully taken pursuant to search warrant); 1538.5, subd. (e) (return of property subject to successful search or seizure motion). However, specifically with respect to the issue of returning medical marijuana to an accused after their case had been dismissed, the appellate court in Garden Grove v. Superior Court (Kha) (2007) 157 Cal.App.4th 355 provides this authority. In short, the court in Kha held qualified patients have the right to obtain and use marijuana without fear of criminal prosecution or sanction under Health & Safety Code §11362.5, and that due process, as well as several Penal Code provisions, require the return of lawfully possessed property, including medical marijuana, to qualified patients.
Do you need a physician to sign a declaration or testify in support of such a motion? Not necessarily. A qualified patient may testify about his or her recommendation for marijuana, regardless of whether the physician is not willing, or not available, to testify. People v. Jones (2003) 112 Cal.App.4th 341, 4 Cal.Rptr.3d 916, 920-924. All the patient need do is raise a reasonable explanation, supported by facts, so that a Court may conclude the patient possessed the marijuana for its intended, lawful use. The direct testimony of one person is sufficient to prove any given fact of consequence, so theoretically, only the patient’s statements are required to carry the burden of proof in this regard. People v. Spark (2004) 121 Cal.Apop.4th 259.
The procedure is to set a motion for the return of the property, and filing moving papers, with declarations and exhibits in support. This generally requires, as noted above, at least a declaration from the patient, along with a copy of their recommendation in effect at the point of seizure. Should the court grant the motion, the court will order law enforcement to return the property. The order may be delivered to the agency holding the cannabis to facilitate its return.
What happens if, at the time the motion is filed, the patient’s recommendation has expired? Do not be fooled by this argument, as medical marijuana recommendations do not necessarily expire. In People v. Windus (2008) 165 Cal.App.4th 634, the appellate court analyzed the issue of whether a recommendation for medical marijuana could “expire” for being too old or stale. The court responded simply by stating “no”, a recommendation for medical marijuana does not “expire” under the Compassionate Use Act, nor does a doctor’s recommendation become stale simply because a certain amount of time has passed from the point the recommendation is obtained to the point of use. Id at 641. The appellate court reasoned, since the patient at issue in that case was in fact eligible to use medical marijuana at the relevant times, it mattered not whether the doctor had recently approved the use, so long as the patient’s medical conditions in fact warranted the use. Id at 641-643. Therefore, as long as a patient still suffers from the medical conditions which required cannabis in the first place, they are entitled to use and possess it, despite the “expiration” of their recommendation.If you or someone you know In Northern California had medical marijuana seized by law enforcement and have an interest in having it returned, contact legal professionals familiar with this process.
Beck Law P.C. is located in Santa Rosa and offers an entire scope of Medical Marijuana related services to clients in Santa Rosa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport, Kelseyville and throughout Sonoma, Mendocino and Lake County.
Beck Law P.C. can furnish the experience and knowledge to help guide you through the complexities of California Medical Marijuana law.
Making an appointment to meet with us is an investment in exploring what options may or may not apply to your particular situation. Your visit to the Beck Law Offices is confidential, as is the information discussed. You can contact our office at 707-576-7175 or contact us online.
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