One Step Over the Line? Sweet Jesus!

One step over the line.

According to this blurb — you can’t really call it a “story,” or even an “article” — in the Fresno Bee, the Tulare County Sheriff has told a medical marijuana user that has he taken one step over the line. The line to which I refer is “the line at which you are in violation of California’s medical marijuana laws,” since legally those are the only ones a California Sheriff can enforce, unless he’s part of a cooperative effort wherein he’s providing support to a federal raid. The claim here is that with 93 plants, the medical marijuana user is “cultivating more of the drug than allowed under medical marijuana regulations.”

While that is possible, it is highly unlikely.

What’s more likely is that the Tulare County Sheriff does not know the law and Tulare County has become flush with cash such that they can endure a lawsuit or two.

Since even a lot of medical marijuana users are confused on this point, let’s look at why I just said that.

First, though, let me point out that I’m not writing a law review article here; I’m writing a blog post. Under normal conditions, I would nevertheless document everything I write, in order to show that — unlike the Tulare County Sheriff — I’m not just blowing it out my ass. However, I’ve already written one blog post today and wasn’t planning to write another when I saw this story. Based on the story alone, though — and the comments being left by ignorant readers of the Fresno Bee (how can we expect them to have any intelligence on this issue? the Bee refuses to report the law accurately), there is so much misunderstanding out there that I cannot ignore it.

So you can trust me — or not — that what I’m writing here is based upon my training, experience, and education regarding medical marijuana laws in California. Again, unlike the Sheriffs in this part of California, I am not constipated and full of…well, let’s just call it “fertilizer.”

Much of what I have to say will rely upon the California Supreme Court case of People v. Kelly, from January 2010. It’s only just over two years old now, so this could explain the ignorance of local officials regarding the Opinion of the Supreme Court. But just in case a sheriff, sheriff’s deputy, or attorney for the County of Tulare happens to read this, I’m going to try real hard to stick to short sentences and small words.

In 1996, the voters of the State of California approved proposition 215. Many educated people know proposition 215 as the “Compassionate Use Act,” or “CUA.”

The first thing the CUA did was make the prohibition — for the Sheriff, that means “ban” — on growing marijuana not applicable to medical marijuana patients, or their caregivers.

There’s a whole lot of law on what constitutes a caregiver, and I’ve probably already blown the minds of any local officials reading this, so I’ll just say that they don’t impact the question of “how much marijuana can you grow?”

In fact, that question — “how much marijuana can someone grow if the medical marijuana laws apply to them?” — is exactly the question that People v. Kelly is about.

Before we get to the very simple answer given by the California Supreme Court, let’s talk about why they were dealing with this question.

I already said that in 1996, the voters passed the Compassionate Use Act. As I also said, the CUA removed the ban on growing your own medical marijuana. The only conditions were that a doctor had recommended you give marijuana a try. You don’t need “a prescription,” as some people erroneously think. You don’t need a written recommendation, either. Another misunderstanding is this: no specific amount of marijuana needed to be specified. Or, as the California Supreme Court stated:

Nor does the CUA specify an amount of marijuana that a patient may possess or cultivate; it states instead that the marijuana possessed or cultivated must be for the patient’s “personal medical purposes.1

Thus, you could actually have a discussion with your doctor that went like this, and it would be perfectly legal:2

“Hey, doc. I’ve heard that marijuana might help with this problem I’m having keeping food down because of my chemotherapy. What do you think?”

“Well, it might. You could give it a try and see if it will do you any good.”

“How much marijuana should I use?”

“Well, we really don’t know a lot about that, because the federal government is too fucked up to let anyone do any significant studies. On the plus side, you can’t really overdose with marijuana, so why not try putting a little in your food or, if you prefer, you can smoke it, and see what happens”

“Okay, doc. Sounds good. I’ll give it a try.”

You are forgiven if you thought there was more to it than that. After all, law enforcement can’t read, either, and they have a reason to know the law, whereas you might not. You’re also to be forgiven if you thought that this would mean that law enforcement might actually learn the law they are charged to enforce and would quit arresting medical marijuana patients who grew their own marijuana. (Damn. That sentence may be too long for a sheriff to understand. Plus, it’s subjunctive.)

Anyway, there was some confusion, because local officials in various parts of California still wanted marijuana to be illegal, even for medical purposes, and, since it wasn’t, they thought the law was “vague” and kept arresting people even though they weren’t supposed to.

So in 2003, the California Legislature decided to “clarify” things. They passed the MMPA, or Medical Marijuana Program Act.

Now there was a lot of weeping and gnashing of teeth within law enforcement when this happened, because the Legislature didn’t just make marijuana illegal again. (You see, they couldn’t, because the voters had changed the law. But we’ll get into that more in a minute.) On the other hand, the Legislature did put limits on how much marijuana a person could have. Because, they noted, law enforcement — Sheriffs, that’s you! — were getting confused over the whole “there are no limits” thing, and kept arresting medical marijuana patients. The Legislature said they wanted to provide guidelines so that the law enforcement officers would quit arresting people who shouldn’t be arrested.

It didn’t work, of course. The Sheriff went right on arresting people. But sometimes those people had more marijuana than the MMPA allowed, so everyone thought it was okay.

Until People v. Kelly.

I should add that while the MMPA limited the amount of marijuana people could have, it recognized that the limits might be too low for some patients. Therefore, the law allowed that you could have more than the specified amount, so long as a doctor said that you needed more. For reasons that don’t matter here, there also developed a belief in the medical marijuana user community that the feds would leave everyone alone as long as they had less than 100 plants. I think this is when doctors started writing these silly recommendations — sometimes erroneously called “prescriptions” — stating that a patient was allowed to have 99 plants.

The truth is that no one — probably not even the doctor — knows how much medical marijuana a particular patient is going to need because, as I mentioned above, the feds have their heads up their asses and there aren’t enough studies, nor is there any kind of regularization in the delivery system (i.e., the plants) to figure out dosages. In fact, the California Medical Association had specifically told doctors:

A physician should avoid … [o[ffering a specific patent individualized advice concerning appropriate dosage timing, amount, and route of administration.3

At any rate, this guy Patrick K. Kelly comes along and gets his butt arrested for having more marijuana than the Medical Marijuana Program Act “allowed.”

Obviously, then, he was breaking the law.

Not.

The California Supreme Court pointed out what everyone who could read and remember things and didn’t have an axe to grind already knew. And we’re going back to small words and short sentences for local officials who may be reading this.

The voters passed the Compassionate Use Act. The Compassionate Use Act did not have any limitations on the amount of marijuana a medical patient could grow, so long as he only grew it for himself.

And — funny thing — California has a Constitution. That Constitution says that what the voters have done, the Legislature cannot undo. Thus, the voters specified no particular limitation for the amount of marijuana a patient could cultivate, possess, or use. Therefore, the Legislature could not specify limits to how much marijuana a patient could cultivate, possess, or use.

Therefore, the California Supreme Court said, the part of the MMPA that added limitations to California’s medical marijuana laws was void. (Sheriff: That means it’s not the law. So there are no limitations under the CUA, except that it has to be for the patient’s personal use.)

The Court left the rest of the MMPA in place. That’s important, too. Because the MMPA made additional changes, including allowing medical marijuana patients and caregivers to do certain things cooperatively and collectively, thus impacting this whole “you can only do this for your own personal use” thing.

But that’s an issue for another blog; another day.

The big problem with all this — and the place where the Tulare County Sheriff ends up spouting bullshit (and he’s not alone) — is this: many local ordinances were drafted on the same model as the original MMPA. In Fresno County, for example, limits were placed on how much marijuana a patient could grow. Those limits are, if I recall correctly, almost identical to the limits in the original MMPA. A couple of years ago, I happened to see a similar document being passed out by the Tulare County Sheriff’s Department to medical marijuana growers. It had nearly the same limits.

But guess what?

If the STATE Legislature cannot place limits on the amount of marijuana because of the CUA, neither can any LOCAL governments. State law trumps local ordinances. For more on that, see my article “Dispensing (With) Law: Strict Constructionism & Medical Marijuana.”

That’s why the Tulare County Sheriff is almost certainly full of fertilizer if he said that the patient he arrested “was found to be cultivating more of the drug than allowed under medical marijuana regulations.”

This isn’t a case of a medical marijuana patient being one step over the line. Sweet Jesus! It’s a case of California’s law enforcement agencies saying, “We absolutely do not give a flying fuck what the voters of the State of California, or the California Supreme Court, have to say about this. We will not allow medical marijuana in our communities.”

In other words, it’s a big “fuck you” to everyone, not just medical marijuana users.

You might be okay with that today, because you don’t like medical marijuana, either. But you should be very, very concerned about a Sheriff’s Department that is willing to ignore the law, the voters, and the California Supreme Court.

Because across that line lies fascism.

Tip of my hat — if I wore one — to Bunny Chafowitz for alerting me to the insane Fresno Bee blurb.

Fresno Criminal Defense
2014 Tulare Street #627 FresnoCA93721 USA 
 • 559-233-8886
  1. People v. Kelly, 47 Cal.4th 1008, 1013, 103 Cal.Rptr.3d 733 (2010) (emphasis in original). []
  2. I’m talking with regard to California law here. The feds are different. Under federal law, no medical marijuana laws are recognized. Primarily because President Barack Obama is a liar. []
  3. Kelly, supra, 47 Cal.4th at 1018, fn. 10. []

Comments

3 Responses to “One Step Over the Line? Sweet Jesus!”

  1. Brenda Linder on April 25th, 2012 8:52 am

    Good catch, and response, Rick. It still amazes me. When I first started working in this area of law I ignorantly assumed our local law makers and law enforcement actually knew the laws they were working under, sworn to enforce and uphold. Not so much. The law makers surprised me the most. Local laws are made based on incorrect state law, stated into the public record and then repeated to the media for good measure. It is literally the dissemination of the law local politicians wish for, but is not the truth. Then they send out deputies and officers to arrest individuals who although are in compliance with the governing state laws, are not in line with local politicians incorrect interpretation of the law. Everyone, as you stated, should be afraid of this practice, regardless of their feeling toward marijuana. The only addition I would make to your blog is that the “limits” in the MMPA were not maximum limits…they were minimum limits. The Legislature stated that local jurisdictions could allow more than the 6/12 mentioned in the MMPA, but not less than the 6/12 plants.

  2. RickH on April 25th, 2012 9:54 am

    That’s a good point about the limits. What actually happened, though, as I recall, is that local officials adopted those as maximum limits. At least that’s what I recall from when I reviewed the papers the Sheriff was handing out in Tulare County.

  3. Eric Essman on August 8th, 2013 8:27 pm

    someday we will look back and shake our heads in disbelief as we tell our children that we use to put people in prison because they grew and or consumed a certain flower that the government disapproved of. Marijuana grows wild on almost every land mass on earth. It is useful for a variety of ailments as well as for use as a recreational substance. I hope that someday we will all agree that it is none of the governments business what adults put in their own bodies. At least that is my belief.

Leave a Reply