Solving the Compassionate Use Legal Dilemma
By Christopher Glew
The other day, I was watching my nephew fumbling with a new game he had just received. This game required my 7-year-old nephew to complete a series of fairly complex tasks before rewarding him with some bells and whistles.
His first few attempts were futile at best. But as he worked his way through the tasks he eventually got a handle on it. It was not long before he was a master and could make those bells and whistles sound off at will, much to his mother’s delight. I happened to think how most every puzzle, problem or dilemma can be solved with the application of desire and intellect. Well, at least 7-year-olds can do it. However, the evolution of medical marijuana, since the inception of the Compassionate Use Act in 1996, has faltered in its progression.
Normally, there is a bumpy ride through the twists and turns of any new legislation, especially when you see legislation that represents a complete reversal of policy. The course of these new laws eventually straightens out and they become clear, easy to apply and understand. At least that is the way it is supposed to work.
California voters approved Proposition 215, the Compassionate Use Act, in 1996, and it was codified under Health and Safety Code Section 11362.5. The new law was met with great exuberance by advocates for legalization and those purporting the therapeutic benefits of marijuana. The law was crystal clear that California voters had approved a law allowing citizens with qualifying medical conditions to possess marijuana for medical purposes. Beyond that fact, little else was remotely clarified by the codified version of Prop. 215.
How much could a patient possess? How much, if any, could a patient grow? Could a patient pay for this medicine? What was a caregiver? Could patients group together to collectively cultivate? These were all questions that the courts and law enforcement seemed to interpret as conservatively as possible. It would be fair to say that most courts and law enforcement soundly rejected the argument that marijuana could lawfully be possessed in any circumstance. As time passed, it became very difficult for everyone to deal with all the questions this new puzzle/law presented. The situation was becoming dire, with a lot of court resources being wasted in an attempt to clarify the legislation.
In 2003, the state Legislature stepped in and passed Senate Bill 420, codified in the Health and Safety Code and referred to as the Medical Marijuana Program. This piece of legislation was a very good attempt to clarify/solve the dilemma created by the original legislation. The Medical Marijuana Program set quantities for allowable possession and the number of plants for cultivation. This is where the often-quoted “eight dried ounces, six mature plants and 12 immature plants” standard came from.
The Medical Marijuana Program also set requirements for the counties to have ID cards and to allow for collective cultivation without criminal sanction. Many other items of clarification came from this legislation as well.
But there was still a lot of room for interpretation of many key components. The most hotly debated is the existence and legality of dispensaries/collectives. The Medical Marijuana Program provided very little information on the existence and legality of a storefront location distributing medical marijuana. The courts saw a huge influx of these cases, as well as cases challenging the quantity limitations. After some time the courts reversed the quantity limits, in the Kelly case, leaving defense attorneys, prosecutors and judges arguing over what is a reasonable quantity. But the Legislature has remained virtually silent on clarifying the issues related to dispensaries/collectives.
Both of these debates rage on today in the civil and criminal courts. It is truly unfortunate that after 14 years of legal wrangling, we are still in a state of utter confusion. What is a reasonable quantity? Can patients pay for marijuana? Can dispensaries or collectives lawfully exist? After 14 years of legal battles, it is clear that we are still unable to make the bells and whistles go off.
Christopher Glew is a Southern California attorney who specializes in medical marijuana law and is a partner with the Law Offices of Glew & Kim. You can reach him at (714) 648-0004, or through his website, www.TheMarijuanaLawyer.com.