|Photo: puffpuffere, forum.grasscity.com|
|Imagine the concept: You and your doctor, rather than the Legislature, deciding how much medicine you need.|
The California Supreme Court has struck down limits on how much medical marijuana patients can possess and cultivate.
Patients and caregivers with a doctor’s recommendation to use marijuana can now possess as much as is “reasonably related to the patient’s current medical needs,” a standard that the court established in a 1997 decision.
The court concluded that the restrictions imposed by the Legislature are an unconstitutional amendment of a 1996 voter-approved initiative.
The Legislature, saying guidance on when to make marijuana possession arrests was needed for law enforcement, mandated in 2003 that each patient could have a maximum of 12 ounces of dried marijuana, in addition to 12 immature plants or six mature plants.
The original 1996 initiative did not limit the amount of marijuana a patient could possess or cultivate, other than to require it be for “personal medical purposes.”
The High Court said only voters can change amendments they’ve added to California’s constitution through the initiative process.
In a unanimous decision in People vs. Kelly, the Court also affirmed protection from arrest and prosecution for patients who possess both a state-issued identification card and comply with state or personal use guidelines.
“I’m very pleased,” said Gerald F. Uelmen, a law professor at Santa Clara University who argued the case. “They gave us exactly what we wanted. This makes it very clear that all of the rights of patients under the Compassionate Use Act are fully preserved.”
|Joe Elford, Americans for Safe Access: “The California Supreme Court did the right thing”|
”The California Supreme Court did the right thing by abolishing limits on medical marijuana possession and cultivation,” said Joe Elford, Chief Counsel with Americans for Safe Access (ASA), a medical marijuana advocacy group.
“At the same time, the Court may have left too much discretion to law enforcement in deciding what are reasonable amounts of medicine for patients to possess and cultivate,” Elford said.
Although the court affirmed that qualified patients and their primary caregivers retain “all the rights afforded by the CUA [Compassionate Use Act of 1996, passed by voter initiative],” law enforcement can still arrest and prosecute if “probable cause” exists.
Chief Justice Ron George noted that police are still authorized to make arrests if they believe medical marijuana ID cards to be forgeries, or if they reasonably expect a crime has been committed.
In keeping with the CUA, qualified patients and caregivers will still have an affirmative defense in court.
Advocates remain concerned that without guidance on personal use amounts, police may abuse their discretion to arrest patients who are in compliance with the law.
The defendant, Patrick Kelly, is a qualified medical marijuana patient treating a number of conditions, including hepatitis C, chronic back pain, and cirrhosis. Kelly was arrested in October 2005 for possessing 12 ounces and cultivating seven plants at his home in Lakewood, California.
Kelly was convicted a year later by a jury, which concluded that he had exceeded the state-imposed “limits” of eight ounces of dried marijuana and six mature plants.
California’s Second Appellate District Court overturned Kelly’s conviction on the grounds that legislatively imposed limits on possession and cultivation of marijuana are an unconstitutional restriction to a voter-approved initiative (Proposition 215, the Compassionate Use Act of 1996).
Both parties in the case, Kelly and California Attorney General Jerry Brown, agreed that medical marijuana limits should be abolished as unconstitutional. Both parties also opposed the appellate court’s invalidation of the entire statute, Health and Safety Code Section 11362.77, which protects ID cardholders from arrest and prosecution if they are in compliance with state and local guidelines.
For more information about the California Supreme Court decision, click here (PDF).