Ben Rice is one of the most experienced medical cannabis attorneys in the country. His depth of knowledge and expertise concerning California’s medical cannabis 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 cannabis 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 cabbanis questions to him, for the simple reason that he is the very best at what he does.
-Allen Hopper, Esq.
Criminal Justice and Drug Policy Director ACLU Northern California
******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.
Friends: federal law prohibits cannabis possession and use and doesn’t provide a medical cannabis exemption from prosecution. The federal relationship with California and the many other states with legalization or decriminalization of cannabis and/or medical cannabis will likely continue to evolve for years. Because of this it is important for anyone who uses cannabis or involved in any fashion with cannabis to scrupulously avoid breaking any state laws. You will not be protected from federal law but you will be much less likely to be in their sites.
Remember too that California medical cannabis law is in flux, sometimes changing in odd or sudden ways… and this can lead to serious consequences. As discussed below, these laws are interpreted differently around the state and sometimes the differences are stark… in one county conduct will be given a pass while an adjoining county may view that same conduct as evidence of a felony with a possible prison sentence. Different law enforcement individuals interpret the laws differently… some are quite reasonable, hard working, and doing the work to better the community… they are serving our community well. Others?…. well you know.
Be smart, Be legal, Be on the side of caution!
****** Information in this web site should not be construed as legal advice and does not constitute an engagement of the Law Office of Benjamin Rice. The information contained below is of a general nature and may not apply to any particular set of facts or circumstances.
****** Finally: Please keep in mind that laws change constantly and I cannot update this site very often. It is essential to seek updated information for yourself about law changes.
Some suggested resources are HERE:
- Americans for Safe Access
- Wo/Men’s Alliance for Medical Cannabis
- Drug Policy Alliance
- Health and Safety Code (California’s drug laws are here)
- SC LABORATORIES (California’s premiere Cannabis testing laboratory)
Educate yourself and be safe!
California and Medical Cannabis
In 1996, California voters passed Proposition 215, The Compassionate Use Act. This law created a new exemption from criminal penalties for medical use of cannabis. Patients with a doctor’s recommendation to use cannabis in medical treatment have a legal defense available to them if found possessing, growing or using cannabis. Proposition 215 “Compassionate Use Act”
Proposition 215 was the first medical cannabis 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 cannabis and passed the Medical cannabis Program Act. SB 420 Medical cannabis Program Act.
Under these laws, if arrested on cannabis 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 cannabis was protected by the medical cannabis laws. Because compliance is so important, take time to understand the new laws.
Medical cannabis “Guidelines”:
Under SB 420: In 2004, State lawmakers attempted to clear up 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 cannabis a city or county must permit a patient to have in their possession is 8 ounces of “bud” (leaf and stems aren’t counted) along with six mature plants or 12 immature plants; cities and counties are free to implement guidelines permitting more medical cannabis 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 cannabis. Note that a judge has to say it is OK on the record — for probationers to lawfully use their medicine. Note that if a patient’s recommendation is outdated when she/he is cited but they secure a new recommendation for their condition — then they may have to fight to have their charge dismissed but caselaw is on their side. It is a pain to go through this so it is always best to have an current recommendation. Some patients make photocopies their original and keep copies with plants and in their wallet.
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! Also, case law states that patients may only carry what is reasonable under the circumstances. So, if you are going to a concert, carrying an ounce of medicine can get you in trouble – even if you are within the state or county guidelines.
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 as I noted above clarified some of the Compassionate Use Act laws.
******NOTE ALSO: the State’s law doesn’t mean you can flash your doctor’s recommendation and the police must just walk away… they may continue their investigation and look for more evidence to see if you are selling the cannabis. If during their search they find evidence of sales or other crimes (other drugs for example) you are busted. A patient will have added protection if she/ he has a “state card” (See below).
Under a terrible recent California Supreme Court decision if you are busted for even an infraction (cannabis without a recommendation, no front license plate, jaywalking?) police may search your “smart phone” for evidence of ANY crime!
While some of the medical cannabis laws have been clarified — patients need to keep in mind that California’s medical cannabis laws still contain many “grey areas”. For example, while it is clear that people can possess, use, transport and grow their own medical cannabis 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 in some places. As of this writing, January 2014, Santa Cruz City and County are allowing collective gardens and dispensaries. The County is an updated ordinance regarding dispensaries and a new cultivation ordinance will be added to the books soon. This will provide “limited immunity” for Cultivators so long as they follow certain guidelines. I have been retained by the Association for Standardized Cannabis and drafted letters and appeared several times before the Board of Supervisors along with Board Members and patient and cultivator activists. We have been largely successful in educating the Board but have had to deal with a surprising amount of illogic and misinformed rhetoric. With Santa Cruz in the forefront of first medical cannabis tolerance and now polling in the high 70% in favor of regulated and taxed recreational cannabis the difficulty we have had moving the Board is strange. Stay tuned.
Other cities and counties are using the recently decided Riverside case to outlaw collective grows and dispensaries. This is idiotic. The people who are most ill are often the people most unable to grow their own medicine. Using their zoning powers to effectively stop well regulated (and taxed) methods of distribution only plays into the hands of cartels and the black market.
The City of Santa Cruz more than thirteen years ago created guidelines for dispensaries to open and for nine years has permitted dispensaries to operate because the owners met all of the regulations the city came up with. (The City of Santa Cruz now has a limit on dispensaries with only two dispensaries allowed.)Meanwhile, the former Sheriff of Santa Cruz County and our District Attorney, believed until three years ago that dispensaries and those who provided medical cannabis 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”. This same crazy debate over the interpretation of our laws continues to be played out around the state.
The irony of course is, California being first in the country to pass medical cannabis laws has provided good lessons for other states to learn from – and nearly twenty years later we still suffer from the many unresolved questions.
Now with the legalization of recreational cannabis use in Colorado and Washington, the 22 states (if we include DC) which now permit medical cannabis, and 21 more with pending legislation to permit medical cannabis as of 4-20-14, and, the August, “Cole Memo” (PLEASE ADD LINK TO BLUE: COLE MEMO 8-29-13 it seems safe to say that the stupid and expensive war on medical cannabis is on it’s last wobbly leg.
Some questions that have been answered in the nearly 20 years of California’s medical cannabis laws though are: “Won’t allowing medical cannabis lead to the destruction of the state’s social fabric”…. “Won’t everyone just get stoned and watch tv”? “Won’t the state fall apart? Heck no. Our kids are as healthy and our communities are as vibrant – or more so – than any others.
Please let our elected officials know you support reasonable regulations to assure patients a safe method of securing unadulterated cannabis.
Here is a photo from the WAMM garden in 2002… then the only lawful collective garden in the United States.
Santa Cruz County Guidelines
Santa Cruz County has been a leader in recognizing the benefits of medical cannabis. 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 cannabis 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 cannabis cigarettes per day. For some patients that isn’t enough (but again, the law permits greater amounts if recommended by the patient’s doctor). So, it is not about numbers in Santa Cruz…it is about square feet of “canopy”… the measurement from the outside tips of your plants added together.
But the “new” 2014 cultivation ordinance has much greater restrictions for cultivators who want to provide for a collective of more than nine patients or for a dispensary. Here is a letter I sent out to clients April 16,2014:
This email is to inform you of some new developments in the County’s enforcement attempts against medical growers. Although there has been little recent criminal enforcement by law enforcement, the county has turned to another means of indirectly punishing land owners and shutting down cultivators: the County Building Code and Permit Department.
Santa Cruz County, like all other counties, has a Building Code which limits what property owners can do on their properties and requires permits be obtained before changes are made. Although code violations are unrelated to felony criminal cannabis laws, they are enforceable as infractions, or sometimes even as misdemeanors, and can result in some pretty harsh consequences (usually in the form of large fines and a “red tag” being placed on the property which can be very difficult to get removed, and can even result in misdemeanor charges).
It has recently been brought to our office’s attention that the county has been using aerial photographs (such as those found on Google Earth) by comparing new photos with older photos to see if changes have been made to properties (such as new buildings or roads, areas where trees have been cleared, etc.) without permits (please note that even a greenhouse is considered a building by the county and requires a permit to install).
The County has been going after growers and property owners. So what does this all mean to cannabis growers and property owners? Here is a brief summary of the county’s rights and abilities in enforcing the building code.
- Right to Enter- when the planning department has reasonable cause to believe that a land use violation is occurring, an inspector has the right to enter the property at any reasonable time to inspect it, even without prior notice.
- Order of Abatement- a violation can be declared a nuisance by the County, and an order can be placed requiring the nuisance be removed within 10 days. Generally violations that do not create an immediate danger to health, safety or the environment will be given 90 days to be corrected.
- Fines- fines can range from $100 to $2500 per violation. In addition if the violation(s) are not addressed within the time given, each additional day that passes can be considered a separate violation (meaning another new fine can be given every day). In addition to these fines, the violator will also be liable to pay all of the county’s enforcement costs, including inspection and re-inspection costs, administrative costs, attorney’s fees, etc. As you can imagine, these costs add up very quickly and can get very expensive.
- “Red-Tagging”- a red-tag can be placed on the property, which is essentially a lien placed on the property that will not be removed until all violations are addressed and all fines are paid.
- Misdemeanor charges- any person who is found to be knowingly and willingly in violation can be charged with a misdemeanor punishable by a fine of up to $1000 or by imprisonment of no more than six months.
- Other- everything that is done without a permit will need to be removed or addressed. This means that any buildings that have been built will have to be taken down, roads, driveways, water tanks, irrigation equipment, electrical work, removed, etc. An indirect result if this may be that you will have to take down your garden. Landlords should be aware that if their tenants make changes on their property without getting a permit, they can be held responsible and left to deal with the violations after the tenant has moved on.
As explained above, property owners may be held responsible for the violations of their tenants, which can be very expensive. For example, grading violations may require significant work to return the property to the pre-graded state. If the cultivator disappears or doesn’t have the money to pay for the work, the property owner will be out of luck.
Between the time that I began writing this email and the time that I sent it, another grower contacted my office saying that his property had been red-tagged, so be aware that the county is being proactive in seeking out code violators. This grower was contacted by county inspectors (not sheriff deputies) who have told him to immediately pull his plants up. Growers and property owners should be aware of this if they are considering making changes to their property without first getting a permit. Contact my office for more information.
Please note, If you are a client of mine, I can help with red tag fights… If you are not a client and get a red tag, I cannot help because of a conflict of interest.
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 cannabis 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.
Large collectives should meet with a knowledgeable attorney and make sure they are following the most up – to – date laws and “best practices” in their community. I have been asked to help collectives and dispensaries throughout California and usually persuade people to find someone in their home area who is knowledgeable about local interpretations of the law. I have represented many people in Santa Cruz cases who got advice from out of town attorneys that led to criminal charges here.
Medical cannabis ID Cards
All California counties are now required to issue identification cards to residents with medical cannabis 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 cannabis 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 as outlined above. But with the card and staying within the guidelines, patients enjoy the added protection of this “no citation or arrest unless probable cause” rule. I am seeing more occasions where law enforcement officers are shown doctor’s recommendations but then asking if the patient has a state card. No card? More problems for that patient.
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 cannabis 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 may have to prove your doctor agrees you need the amount of cannabis you possess. Most police will apply the guidelines outlined above. 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” (for example, Google, “People v. Jevon Jackson” and read that short opinion about dispensaries… a great case but one that all dispensary operators should be familiar with). Many cases are also available through Cal NORML or Americans for Safe Access.)
The story: Mr. Kelly was convicted of possession of cannabis in a county that had not set guidelines above the state minimums. He had a doctor’s recommendation but 12 ounces of cannabis on hand — four more than the state guidelines allow. The judge wouldn’t allow Mr. Kelly the medical cannabis 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.
(Remember: you can read all important published California cases by “Googling” (for example, Google, “People v. Jevon Jackson” and read that short opinion about dispensaries… a great case but one that all dispensary operators should be familiar with). Many cases are also available through Cal NORML or Americans for Safe Access.)
BEGINNING IN AUGUST I WILL HAVE A TWITTER FEED TO FOLLOW.
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 county guidelines are generally accepted by local police agencies. Better have a “state card” if you have an interaction with a CHP officer (See below).
The City of Santa Cruz has police regulations relating to medical cannabis written into their Policy and Procedures Manual. Read this if you are a Santa Cruz city resident. While the City’s passage of Measure K was largely symbolic most of the SC law enforcement respects what people who live here have so clearly said over and over again: we don’t want cannabis to be considered more then, at most, a health issue… like too much alcohol, caffeine, tobacco and electronic media in someone’s life.
If you are arrested and your medicine confiscated: you may be able to get it returned. As of this writing (January, 2014) I have helped clients recover nearly 30 pounds of medical cannabis.
And finally, here are two members of a collective of local pirates. I was able to get charges dismissed and their four pounds returned in 2012.
In November 2008, the California Supreme Court ruled in People v. Mentch that people must provide more than cannabis 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 cannabis 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 cannabis 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 cannabis 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.
If you use cannabis for a medical condition that could lead an MD to give you a recommendation for using medical cannabis – get the recommendation! Then get the State card. You 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 cannabis based on a sincere medical judgment and from initiating an investigation solely on the ground” that a physician recommends the use of medical cannabis for a patient.
Santa Cruz County Sheriff’s are making fewer cannabis raids then ever. I hope this is law enforcement’s last gasp in the dying, terribly misguided war on cannabis. While their war continues — patient’s must educate themselves about their rights under the Compassionate Use Act.
My advice always includes the following:
- Keep up to date on state and local law changes;
- Get a state medical cannabis card;
- Keep your recommendation up to date;
- Keep copies of your medical cannabis card with you at all times;
- Keep copies of your medical cannabis 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”.
- Don’t keep pictures, texts and emails on your phone or computer that can be misinterpreted to suggest unlawful activity… they cannot be erased from your computer or access blocked on your phone. A picture of your friends garden will not look the same to an investigating officer.
- If possessing more cannabis then guidelines permit, find a doctor who will NOT BE AFRAID to state the amount of cannabis 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 it is illegal to sell or give away your “excess” medicine to other patients or dispensaries. Only if you are a member of the same collective can you do this AND EVEN THEN MANY IN LAW ENFORCEMENT STILL BELIEVE IT IS ILLEGAL. Be sure to seek legal advice before doing this.
- 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; texts; emails or 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 cannabis 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 often 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 cannabis 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 cannabis cases; had many cases dismissed and won acquittals for many clients; have represented nearly all of the authorized and un-authorized medical cannabis dispensaries in the Santa Cruz; have been qualified as an expert witness in a medical cannabis case in Santa Cruz Superior Court and I have secured the return of about 30 lbs. of medical cannabis for 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.
WAMM: “The Gold Standard of the medical cannabis movement”. Judge Jeremy Fogel
I have the honor of being the local attorney for the premier medical cannabis cooperative in the country: WAMM (Wo/Men’s Alliance for Medical Marijuana). WAMM has operated in Santa Cruz County for over 20 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 cannabis had been found helpful in stopping seizures and Val began using cannabis as an adjunct medicine. Cannabis eventually became her sole medication and Val has controlled her seizures for well over thirty years.
In 1992, Val was arrested in Santa Cruz along with her husband Mike for the cultivation of five cannabis plants. Val became the first defendant in our state to successfully challenge the existing cannabis 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 1993 Val and Mike started WAMM as medical cannabis collective with 250 members. As of this writing over 160 members have died. But their deaths have been less painful and more dignified because their suffering was dramatically reduced with their use of medical cannabis.
In Val’s capacity as director of WAMM over the last twenty 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 cannabis.
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 cannabis. In response to their arrest, two weeks later, the city of Santa Cruz made national headlines by allowing WAMM to distribute cannabis on the steps of city hall. (Read the New York Times coverage here).
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 160 WAMM members have died.
Since the DEA raid — nearly 160 WAMM members have died. Because of WAMM they were at least more comfortable.
As a result of the raid, Val, Mike and WAMM filed two lawsuits against the federal government, initiating 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 included 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 was 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 first and still only legal medical cannabis cooperative garden. Our litigation was essentially on hold pending the Supreme Courts ruling in Raich v. Ashcroft. The injunction lasted over 18 months. Judge Fogel called WAMM, “The Gold Standard of the medical cannabis movement”.
WAMM’s argument was that the federal government had made a practice of intentionally sabotaging state-based medical cannabis reform efforts. The case was settled Jan. 22, 2010, shortly after President Obama’s Attorney General, Eric Holder, declared in the now infamous “Ogden Memo” that the federal policy was to leave people alone if they are obeying their state’s medical cannabis laws. The WAMM case settlement was clear proof that WAMM had been operating within California’s laws.
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 cannabis 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 was a great win for WAMM and medical cannabis 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 cannabis laws. That assertion was fully vindicated by the settlement.
The US Supreme Court / Federal Law And California’s Medical cannabis Laws:
In 2005 the United States Supreme Court ruled against Angel Raich and Diane Monson. While this meant California’s medical cannabis laws do not trump the federal laws, California’s laws are not affected. The issue for the court in Raich was not whether California and the other (now) 18states (and Washington DC) can enact and enforce our medical cannabis laws, the issue was whether the Feds would continue to have authority to enforce Federal cannabis laws against patients and caregivers acting in compliance with state laws. The Supreme Court said they do. But note: the Feds may not force California law enforcement to enforce the federal law nor can local law enforcement say, “we have to enforce federal law”.
For a letter I recently sent to Santa Cruz County Supervisors regarding the State/ Federal Q’s follow this link.****
Since 99% of cannabis 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.
Since the Ogden Memo, the US Attorneys in California have continued to shutter dispensaries and prosecute people in our state. Recently, the US Attorney for Northern California, Melinda Haag, stated:
“Typically, when any of the following characteristics is present, the conduct will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest:
- unlawful possession or unlawful use of firearms;
- sales to minors;
- financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;
- amounts of cannabis inconsistent with purported compliance with state or local law;
- illegal possession or sale of other controlled substances;
- or ties to other criminal enterprises
Understand the law as best you can and minimize your chances of facing a destroyed garden or arrest.
OTHER DRUG CASES
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 under $1000.00 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.
Decriminalization has worked in Switzerland for nearly 15 years… fewer drug users and less crime… law enforcement there calls it a success. Same too in Portugal for the last six years. There are lots of good books and articles regarding the failed war on drugs and success stories around the world. Contact me if you want some titles or Google this question.
Remember too friends, many of our past and present leaders in the law enforcement world recognize that cannabis should be legalized… taxed and regulated. Increasingly I hear them and their officers and deputies saying they are agreeing the war has been a terrible waste of time and resources. They want to deal with our serious crime issues. Always be respectful if you are dealing with officers/ deputies and hopefully they will treat you the same way.
HAVING SAID THIS, REMEMBER THAT SOME COPS STILL BELIEVE IN THEIR WAR. SO, WHILE YOU ARE POLITE, DON’T ANSWER THEIR QUESTIONS… JUST SHOW YOUR RECOMMENDATION AND SHUT UP! LOOK AT THIS TRAINING ARTICLE PRODUCED BY THE CALIFORNIA NARCOTICS ASSOCIATION… HOW TO ASK Q’S TO GET EVIDENCE AGAINST PEOPLE WITH CANNABIS
THE DRUG WAR SHOULD END!
Understand also that the laws regarding “legal” medical cannabis 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.
Several states now require testing of sold cannabis. In my business I have seen many pounds of adulterated cannabis. We need the state or the county to 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 national leader in cannabis testing (a local laboratory engaged in this sort of testing): SC Labs. FULL DISCLOSURE: THE LAB WAS STARTED BY MY SON IAN AND THREE FRIENDS. HARD WORK HAS PAID OFF AND I’M VERY PROUD OF THEIR SUCCESS AND CONTRIBUTIONS.
If you are a grower… please practice methods that protect the land, water and wildlife of our beautiful county. Too much poison is going into our streams and too many areas spoiled. This is causing a push back from people who otherwise support medical cannabis.
Please let our elected officials know you support reasonable regulations to assure patients a safe method of securing unadulterated cannabis.