Q: I just got a recommendation from my doctor for medical marijuana. But for some reason the recommendation doesn’t say how much I need, or much I can carry. What do I do?
A: When your physician recommends the use of medical marijuana to treat an illness, he or she will issue a written document which generally contains your information, the diagnosis of the illness to be treated, and the approval or recommendation of the physician for you to use medical cannabis to treat the condition. The recommendation by itself permits you to use, possess and cultivate medical marijuana for personal use (or cultivating and possessing by a primary caregiver, on your behalf), subject to any other applicable ordinances, statutes or guidelines.
The majority of doctors do not specify a “dose” or amount for the recommendation. This of course comes with pros and cons. On the one hand, the absence of a specified quantity gives the patient much more flexibility as to what they may use, guided mainly by the amount needed by the patient to treat their specific condition. However, the lack of a “dose” may also create issues during confrontations with law enforcement, when a patient carries an amount an officer might consider “excessive” or “unreasonable”. For better and for worse, most members of law enforcement are not trained nor educated in the lawful use and cultivation of medical marijuana, and rarely do they possess a medical degree sufficient to debate with a patient how much marijuana is required to treat the illness at hand. When any uncertainty arises as to what amount of marijuana a patient may lawfully possess, that uncertainty most often results in an arrest of the patient, and a referral of the case to the district attorney. The charges may be dismissed later on, but only after the prosecution drags the patient through the criminal proceeding, costing them time, stress, anxiety, and of course attorney’s fees.
The Compassionate Use Act does not contain any specified limitation of what a patient may carry. The Medical Marijuana Plan of 2004 purported to place a quantitative limitation of what a patient could lawfully possess, including limiting any patient or primary caregiver to carry no more than eight (8) ounces of dried marijuana at any given time, and no more than six (6) mature or twelve (12) immature plants at any given time. California Health and Safety Code §11362.77. However, the California Supreme Court in People v. Kelly (2010) 47 Cal.4th 1008 decided that because the Compassionate Use Act was part of the California Constitution, it could not be amended inconsistently through the Medical Marijuana Plan, which was passed by the legislature as a bill. In other words, to the extent that the Medical Marijuana Plan was inconsistent with the Compassionate Use Act, the latter would prevail over the former. The Kelly opinion, citing >People v. Trippet (1997) 56 Cal.App.4th 1532, interpreted the Compassionate Use Act to permit a patient to use medical marijuana in an amount that is reasonably related to or required by their medical condition, and to the extent that the Medical Marijuana Plan would prevent the patient from using as much as they reasonably require, it is unconstitutional.
However, it is crucial to remember that the Kelly opinion did not declare Section 11362.77 void in its entirety. The opinion was very careful to analyze both laws, and only stated that Section 11362.77 was unconstitutional to the extent that it would prevent a patient from asserting a defense in a criminal proceeding for possessing more than eight (8) ounces of marijuana, or more than six (6) mature or twelve (12) immature plants. A patient might be able to claim compliance with the law on its face by staying within those set guidelines under Section 11362.77. But, at the same time, those strict requirements no longer prevent patients from possessing more than those amounts, as long as they can prove the amount they possess is reasonably required to treat their condition.
Beware: the issue of how much marijuana any given patient or caregiver may carry is mired in ambiguity and debate, constantly fraught with arguments between law enforcement, attorneys and the courts. To best know your rights, consult a competent legal professional able to give you the information you require to make the best possible decisions.
Medical marijuana laws are unfortunately fraught with confusion, ambiguity and many areas subject to interpretation by the courts, or legislation by county and municipal agencies. Anyone seeking to begin using medical marijuana should always consult the relevant laws of the State of California, but also those local ordinances or guidelines which may apply. Contact a local legal professional who understands patients’ rights and limitations for advice on the use of medical marijuana.
Beck Law P.C. is located in Santa Rosa and offers an entire scope of Medical Marijuana 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 legal aspects of your current situation, needs or plans. 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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