"Ben Rice is one of the most experienced medical marijuana attorneys in the country. His depth of knowledge and expertise concerning California's medical marijuana laws, and his ability to navigate the complex legal and political landscape surrounding the issue are unsurpassed. Ben is a fiercely committed advocate for medical marijuana patients and those who care for them. Ben has litigated cases as co-counsel with the National ACLU, and we regularly refer clients with medical marijuana questions to him, for the simple reason that he is the very best at what he does."

Allen Hopper
Litigation Director
ACLU Drug Law Reform Project

Medical Marijuana And California's Compassionate Use Act

******PLEASE NOTE: This section should be read from beginning to end. Reading it any other way may lead to misunderstandings of the law, criminal charges or available defenses.

******NOTE ALSO: California's medical marijuana laws change often and I cannot always update this site to reflect those changes. Use this site as a place to begin your research. Educate yourself and be safe!

In 1996, California voters passed Proposition 215, The Compassionate Use Act. This law has created a new exemption from criminal penalties for medical use of marijuana. Patients with a doctor's recommendation to use marijuana in medical treatment have a new legal defense available to them if found possessing, growing or using marijuana. Proposition 215 "Compassionate Use Act"

Proposition 215 was the first medical marijuana law in the country and the law left many unanswered questions — like — where is a patient supposed to get their medicine if they can't grow their own? In 2004, the legislature attempted to clear up some of the "grey areas" regarding medical marijuana and passed the Medical Marijuana Program Act. SB 420 Medical Marijuana Program Act

Under these laws, if arrested on marijuana charges, patients (and caregivers) can claim entitlement to an exemption from the law. The courts call this a "limited immunity". To be found "not guilty", the patient or caregiver must raise a reasonable doubt for either the judge before trial, or a jury at trial, that their marijuana was protected by the medical marijuana laws. Because compliance is so important, take time to understand the new laws. Understand also that the laws regarding "legal" medical marijuana use are still evolving. For up to date information, please visit Drug Policy Alliance — American's for Safe Access and NORML's web pages. To read the laws yourself: please click here to see Health and Safety Code section 11362.5 the code section that resulted from Proposition 215, The Compassionate Use Act. Click here for Health and Safety Code section 11362.7, which clarified some of the Compassionate Use Act laws.

While some of the medical marijuana laws have been clarified — patients need to keep in mind that medical marijuana laws contain many "grey areas". For example, while it is clear that people can possess, use, transport and grow their own medical marijuana if they have a valid recommendation — whether dispensaries are lawful or whether people who grow for dispensaries enjoy any protection under the law is still in dispute. As of this writing, December, 2011, many cities and counties claim it is not legal to ever exchange money for medicine. This, of course is stupid. How are qualified patients supposed to get their medicine if they can't grow their own? The people who are most ill are often the folks most unable to grow their medicine. Appropriately, many cities and counties have created guidelines so dispensaries can operate and assist people. The City of Santa Cruz ten years ago created guidelines for dispensaries to open and for seven years has permitted two dispensaries to operate because the owners met all of the regulations the city came up with. Meanwhile, the Sheriff of Santa Cruz County and our District Attorney, believed until this year that dispensaries and those who provided medical marijuana to them were breaking the law. The only reason the Santa Cruz city dispensaries were not raided by the sheriff's office was "the politics of the situation".

The County, with a new sheriff and a new realization that money was being wasted, just passed a new Ordinance which allows dispensaries to operate. To read the Ordinance please follow this link. I was asked to assist with ideas for the ordinance and was largely pleased with the result. However, the County still needs to clarify how the dispensaries are to get their medicine (protect the collective member growers) AND create guidelines requiring testing of the medicine. Too many growers use dangerous chemicals that can jeopardize patient's health... particularly people with compromised immune systems. For more information regarding testing please visit the local laboratory engaged in this sort of testing: SC Laboratories.

Please let our elected officials know you support these reasonable requests to assure patients a safe method of securing unadulterated marijuana.

Under SB 420: In 2004, State lawmakers attempted to take away some of the grey areas of the law by establishing possession and cultivation guidelines so patients and law enforcement would know how much patients could have. SB 420 made important changes to the law: The minimum amount of medical marijuana a city or county must permit a patient to have in their possession is 8 ounces of "bud" (leaf isn't counted) along with six mature plants or 12 immature plants; Cities and Counties are free to implement guidelines permitting more medical marijuana to be possessed or grown by patients (see below for Santa Cruz's guidelines); A doctor may permit the patient to have more than any city, county or state guideline; A doctor's recommendation may be in writing or spoken; The law is designed to allow parolees, defendants and probationers to retain full access to medical marijuana. Note that a judge has to say it is OK on the record — for probationers to lawfully use their medicine. If a patient's recommendation is outdated when she/he is cited but they secure a new recommendation for their condition — then they still are OK!

WARNING: While a doctor's recommendation may state that a patient may possess more then the state guidelines for plants and bud.....a patient may still be required to go to court and prove that the amount she/ he possessed was necessary for their medical condition. So don't assume that 99 plant recommendation will cause law enforcement to walk away from your grow!

Santa Cruz County has been a leader in recognizing the benefits of medical marijuana. In 2004, four doctors were asked to study the issue and they recommended the guidelines adapted here. Our county ordinance allows up to three pounds of medical marijuana per patient along with 100 square feet of plant cultivation. While three pounds may sound like a lot — that works out to less than four medical marijuana cigarettes per day. For some patients that isn't enough (but again, the law permits greater amounts if recommended by the patient's doctor).

All California counties are now required to issue identification cards to residents with medical marijuana recommendations. (Most counties now provide these cards - Santa Cruz was among the first.) If a patient has a county card and has no more medical marijuana than permitted by the state (or their local) guidelines, then they cannot be arrested for possession or cultivation unless the police officer has probable cause to believe the patient's card is a forgery or that the patient's recommendation was obtained through fraud.

Patients do not have to have a county card to be protected. But with the card and staying within the guidelines, patients enjoy the added protection of this "no citation or arrest unless probable cause" rule. Santa Cruz County's State card program keeps participant's names confidential: after reviewing a patient's proof of a medical recommendation, assigning a number for the patient and creating the photo ID card, the written materials are returned to the patient — only the number is left. If an officer calls the registry after being shown the card — the health department simply acknowledges having provided the patient with the card. For more information — check out the County medical marijuana site.

The Kelly case: In January of 2010 — the California Supreme Court decided the case of People v. Kelly. Everyone should understand this case as it has eliminated the state and county guidelines for people who do not have a "state card". In other words, if you have only a doctor's recommendation (no state card), you will have to prove your doctor agrees you need the amount of marijuana you possess. Many doctors won't write out what they think a patient should be allowed to grow and possess. If you don't have something in writing in advance (post it at your garden site) then you may find yourself paying a doctor/ and a lawyer to be in court with you justifying what you were found with. For years I've been urging clients to get the state card and now, especially in counties with generous guidelines, this makes even more sense. (Remember: you can read all important published California cases by "Googling". Many are also available through Cal NORML or ASA too.)

The story: Mr. Kelly was convicted of possession of marijuana in a county that had not set guidelines above the state minimums. He had a doctor's recommendation but 12 ounces of marijuana on hand — four more than the state guidelines allow. The judge wouldn't allow Mr. Kelly the medical marijuana defense and the jury convicted him. On appeal, he argued that the 2004 Compassionate Use Act was unconstitutional because it created guidelines that put a cap on how much a patient can have. California's constitution says that the legislature may not amend laws created through the initiative process (put on the ballot by voters and then passed during an election). The Supreme Court agreed and Mr. Kelly's conviction was set aside. Great for Mr. Kelly but (again) the decision means that only people with the state card benefit from generous guidelines many counties have come up with.

A warning re. Guidelines: Until recently everyone assumed the Santa Cruz County guidelines apply to all residents of the county. They don't! Each city may enact their own guidelines (again, they can't be more restrictive then the State's). So, while one would hope that each city in the county would adapt the "generous" county guidelines, none have. The City of Santa Cruz has been waiting for the Supreme Court to decide the Kelly case and now that it has been decided — they need to decide whether they should adapt the County limits. We can only hope that the city leaders throughout the county establish reasonable ("generous") guidelines.

Only the City of Santa Cruz has police regulations relating to medical marijuana built into their Policy and Procedures Manual. Read this if you are a Santa Cruz city resident.

If you are arrested and your medicine confiscated: you may be able to get it returned. As of this writing (December, 2011) I have helped clients recover more than 20 pounds of medical marijuana.

Outside Court With Wamm Founder Valarie Corral And Wamm Members

In November 2008, the California Supreme Court ruled in People v. Mentch that people must provide more than marijuana to qualify as caregivers. The court strictly construed the language in Prop. 215 which defines caregivers as those people who, "consistently provide housing, health or safety" to the patient.

Mr. Mentch, a Santa Cruz County resident had six patients who had designated him their caregiver. But besides providing marijuana he made only "token gestures" of caring for most of those patients and the trial court said that wasn't enough and didn't allow him to argue a medical marijuana defense. He was convicted. The Sixth District Court of appeal unanimously reversed the trial judge and said these were questions for the jury. But ultimately the Supreme Court (unanimously) reversed that court. (See what I mean about "grey areas"? Judges disagree, cities and counties disagree — What is a patient to do?)

This ruling will make it very difficult, if not impossible, for many patients to secure their marijuana without going either to the black market or the grey market dispensaries. Many people cannot grow their own plants because of their illness or living circumstances. The court, in an outrageous aside, claimed that their interpretation of the law was consistent with the wishes of the California voters who passed the initiative. Surely the voters (70 % of Santa Cruz County voters) never intended to make ill people have to struggle like this to secure their medicine.

I represented Mr. Mentch in his second case and won the return of his marijuana.

I represented Mr. Mentch in his second case and won the return of his marijuana.

I am often consulted by people who want to operate collectives. This of course makes sense because not everyone has the ability or location to grow their own medicine. The California Attorney General in August 2008 posted guidelines to help patients and law enforcement determine what may be lawfully done by a collective or co-operative medical marijuana association. It is very important to read and understand these guidelines. Click on the link, print this out and study it and you will be much less likely to run into trouble with law enforcement. I advise collectives to post their member's recommendations and a signed agreement wherein each member states that they have read and understood the state and local laws, the rules regarding care - giving, and the Attorney General guidelines.

***Important update for collective medical marijuana grows: The new Santa Cruz County Ordinance states that collectives with nine or fewer members need not comply with the new guidelines in the ordinance. The original draft said three members but I was able to persuade the drafters to raise that number. I have many collective clients who have large gardens with more than three members. Our sheriff's office task force walks away from those when the patients have made it obvious the garden is just for their medical needs.

If you use marijuana for a medical condition that could lead an MD to give you a recommendation for using medical marijuana - get the recommendation! Then get the State card. You probably will not be protected by the laws described above if you get the recommendation after an arrest. Note that there are more doctors then ever who are willing to write recommendations given the increased protection for doctors resulting from the Conant case. (In Conant, the 9th Circuit Court of Appeal held that the US Government could not punish physicians for voicing their professional opinions based on their best medical judgment. (The US Supreme Court let that decision stand) According to the Court decision, "the government is permanently enjoined from revoking a physician's DEA registration merely because the doctor recommends medical marijuana based on a sincere medical judgment and from initiating an investigation solely on the ground" that a physician recommends the use of medical marijuana for a patient.)

Santa Cruz County Sheriff's are making fewer marijuana raids then ever. I hope this is law enforcement's last gasp in the dying, terribly misguided war on marijuana. While their war continues — patient's must educate themselves about their rights under the Compassionate Use Act.

My advice always includes the following:

• Get a state medical marijuana card;

• Keep your recommendation up to date;

• Keep copies of your medical marijuana card with you at all times;

• Keep copies of your medical marijuana card AND recommendation with any plants you are growing;
  • If you are growing with other patients — keep copies of all patient's recommendations with whom you are growing with your grow AND familiarize yourself with the Attorney General Opinion which describes "legal collectives and co-operatives".

• Find a doctor who will NOT BE AFRAID to state the amount of marijuana they believe is appropriate for your medical condition(s);

• Unless you can qualify under the Mentch case definition of "caregiver" (above) don't call yourself a caregiver if you are growing for more than yourself;

• Remember the Santa Cruz District Attorney's Office and Sheriff's Office believe it is illegal to sell your "excess" to dispensaries. That interpretation of the law is wrong in my view if you are a member of the dispensary's collective. But my view (shared by many cities and counties that have permitted collectives to open responsibly) is NOT shared by people who can make your life miserable. (This is very hazardous so you should seek legal counsel to know what risks you may face);

• Do not keep anything around that could be considered evidence of sales: "Pay and Owe sheets" (Eg., paperwork showing people owe you money); scales; packaging materials; pagers; photos of yourself "back in the day" with mounds of mushrooms, etc..

• Stay well within the State or County guidelines;

• Remember that the law does not protect your use of marijuana for "spiritual growth";

• Keep a copy of the medical evidence you provided your M.D. when you secured your recommendation.

• Do not keep a firearm around— yes, you have 2d amendment rights- but firearms make law enforcement believe you are prepared to shoot potential thieves and so you are more likely possessing to sell. District Attorneys always add enhancements to the underlying charges and judges are less inclined to be lenient. These are the cases that wind up in the paper... not a nice way for family and friends to see your photo.

• If police show up — show your recommendation(s) then shut up. Nearly everyone who tries to "talk their way out" of a problem regarding their medical marijuana grow make matters worse. Shut up and call yourself a good lawyer.

• Remember that the law is changing constantly. Keep up with the changes!

Please note that while I have handled many dozens of medical marijuana cases; had many cases dismissed and won acquittals for many clients; have represented nearly all of the authorized and un-authorized medical marijuana dispensaries in the Santa Cruz; have been qualified as an expert witness in a medical marijuana case in Santa Cruz Superior Court and I have secured the return of more than 20 lbs. of medical marijuana to clients: I cannot guarantee you will have your charges dismissed...... so educate yourself and avoid having to hire me to try and get you out of trouble!!!

Prof. Uelmen, ACLU's Allen Hopper, Valarie Corral, Attorney Ben Rice, and Mike Corral
outside Federal court after the settlement.

I have the honor of being the local attorney for the premier medical marijuana cooperative in the country: WAMM (Wo/Men's Alliance for Medical Marijuana). WAMM has operated in Santa Cruz County for over 15 years with the blessing of local law enforcement and City and County governments.

Valarie and Michael Corral are the founders of WAMM. In 1973, Valerie was in an automobile accident that left her so severely epileptic she often suffered five seizures a day. For the next two years — Val's doctors had her try every known legal medication to try and control her seizures. Nothing stopped the seizures and Val's life was slipping away. Michael read that marijuana had been found helpful in stopping seizures and Val began using marijuana as an adjunct medicine. Marijuana eventually become her sole medication and Val has controlled her seizures for over thirty years.

In 1992, Val was arrested in Santa Cruz with her husband Mike for the cultivation of five marijuana plants. Val became the first defendant in our state to successfully challenge the existing marijuana laws, based on the defense of medical necessity. This victory thrust Val and Mike into the legal, political and social foreground of this health issue.

In 1995 Val and Mike started WAMM as medical marijuana collective with 250 members. As of this writing over 155 members have died. But their deaths have been less painful and more dignified because their suffering was dramatically reduced with their use of medical marijuana.

In Val's capacity as director of WAMM over the last fifteen years, she has testified before California State legislative committees of the Senate & the Assembly. She has received Proclamations and Resolutions from SC City and SC County and was the Santa Cruz County Women's Commission Woman of the Year in 1997. In 2003, Val was appointed by Attorney General Bill Lockyer to the Statewide Task Force on Medical Marijuana.

Mike too has testified before State and County committees and legislative bodies and has been an expert witness many times for patients charged with criminal acts. Together we have helped countless patients secure their freedom and good names.

Drug Enforcement Raid at the WAMM garden:

On September 5, 2002, heavily armed Federal Drug Enforcement Agents raided the WAMM garden, arrested Val and Mike and confiscated the collective's growing marijuana. In response to their arrest, two weeks later, the city of Santa Cruz made national headlines by allowing WAMM to distribute marijuana on the steps of city hall.

State Attorney Gen. Lockyer sent a highly critical letter to John Ashcroft and the SJ Police Chief pulled his officers off of the DEA task force in protest.

Since the DEA raid — nearly 90 WAMM members have died. HERE IS A RECENT POWERPOINT PRESENTATION WAMM HAS CREATED.

As a result of the raid, Val, Mike and WAMM filed two lawsuits against the federal government, including a historic case in which the City and County of Santa Cruz signed on as co-plaintiffs, acknowledging WAMM as an integral part of the Santa Cruz Health Care system.

The pro bono litigation team assembled includes myself, Santa Clara University Law School Professor Gerry Uelmen, ACLU Drug Law Reform Project, Drug Policy Alliance and the San Francisco Law Offices of Bingham and McCutcheon.

Our Federal court trial judge has been the Honorable Jeremy Fogel — and in his court we obtained an injunction against further DEA raids or harassment. That injunction made the WAMM garden the country's only legal medical marijuana cooperative garden. Our litigation was essentially on hold pending the Supreme Courts ruling in Raich v. Ashcroft. The injunction lasted over 18 months.

WAMM's argument was that the federal government had made a practice of intentionally sabotaging state-based medical marijuana reform efforts. The case was settled Jan. 22, 2010. The ACLU's Allen Hopper stated: "WAMM agreed to settle this case in light of the Obama administration's commitment to change that policy and allow WAMM and similar organizations in medical marijuana states to operate without federal interference. Under the terms of the settlement, WAMM could start up it's litigation right where we left off. Should the federal government once again move to target patients, we will immediately bring the case back to court."

This is a great win for WAMM and medical marijuana patients everywhere. WAMM, the City of Santa Cruz and the County of Santa Cruz have always asserted that WAMM has been operating lawfully under California's medical marijuana laws. That assertion has been fully vindicated by this settlement.

View The Victory Letter That Appeared In The January 2010 Santa Cruz Sentinel.

The US Supreme Court / Federal Law And California's Medical Marijuana Laws:

The United States Supreme Court ruled against Angel Raich and Diane Monson. Nevertheless, California's law is not affected. The issue for the court in Raich was not whether California and the other 11 states can enact and enforce our medical marijuana laws, the issue was whether the Feds would continue to have authority to enforce Federal marijuana laws against patients and caregivers acting in compliance with state laws. The Supreme Court said they do.

Since 99% of marijuana arrests are made by state and local law enforcement officers — it will be highly unlikely that patients and caregivers will be arrested. The federal government simply doesn't have the resources to go after these folks.

President Obama's Attorney General, Eric Holder, has declared that the new federal policy is to leave people alone if they are obeying their state's medical marijuana laws. The WAMM case settlement shows two things: that the feds are serious about that declaration AND that WAMM has been operating within California's laws.

The people who will have to worry most about arrest are people who run large collective or cooperative gardens and those who own and operate dispensaries. The people who are most sick, and least able to grow their own medicine are the ones who will suffer the most if the legitimate gardens and dispensaries are shuttered. Patients will have to rely on black market transactions to secure their medicine. Outrageous of course.

Understand the law as best you can and minimize your chances of facing a destroyed garden or arrest.

Drug Diversion And Prop. 36

Many people can, without an attorney, avoid criminal convictions for drug offenses because of "drug diversion" or because of the passage of Proposition 36: The Substance Abuse and Crime Prevention Act of 2000. Remember though — it is always best to confer with an attorney before deciding what to do. It may be advisable to fight your case. It may be very important to choose the right option between drug diversion and Prop. 36 treatment — so confer with a knowledgeable attorney and learn about your options.

Drug Diversion:
For a number of years, many first time California drug offenders, have been able to avoid criminal convictions by taking advantage of the state's drug diversion laws ("Deferred Entry of Judgment").

If successfully completed, diversion leads to a dismissal of the charges. There are limitations, including: the charges cannot be for sales, possession for sale or transportation. There must be no prior drug diversion or drug offense within five years. No prior probation can have been terminated for non-compliance.

Drug diversion in Santa Cruz County costs $705.00 and consists of intake and exit interviews plus 10 two hour group classes spread over three months. The focus is "drug abuse education and self awareness." After completing the counseling and remaining free of criminal problems for 18 months — the charges are dismissed.

Proposition 36:
Drug laws were radically changed in California in November 2000 with the passage of The Substance Abuse and Crime Prevention Act of 2000.

The good news is that Prop. 36 requires drug treatment rather than punishment for the vast majority of people arrested for drug offenses. Obviously treatment makes sense where there is any viability and that's why 61% of the voters in the state and 70+% in Santa Cruz County voted for this revolutionary law.

What the Act Does:
Certain non-violent adult offenders who use or possess illegal drugs receive drug treatment in the community rather than incarceration. It was designed to:

• Preserve jail and prison cells for serious and violent offenders.

• Enhance public safety by reducing drug-related crime.

• Improve public health by reducing drug abuse through proven and effective treatment strategies.

Eligible offenders receive up to one year of drug treatment and six months of after-care. While drug use relapses are expected and lead to more treatment intervention the courts may sanction offenders who are "not amenable" to treatment. Vocational training, family counseling, literacy training, and other services are supposed to be provided but, with our local and state budget in shambles virtually nothing is offered to people.

If you are suffering with drug problems — get some help. Whether your issue is with cannabis, alcohol, tobacco, meth, heroin or prescription drugs.......You can do it! I've seen dozens of seriously ill people get healthy. These are health issues and never should have been treated within the criminal justice system.

THE DRUG WAR SHOULD END NOW!