Safe Access Now Online Handbook
By Chris Conrad (c) 2004 , 2005, 2007
Federal law and court rulings
Under the Commerce Clause of the Constitution, the federal Controlled Substances Act of 1970 set up five schedules to establish varying degrees of control over certain drugs. In any federal case involving a controlled substance, the presence of a gun can often be used to add charges and increase sentences. Marijuana is in Schedule I, prohibited. As such, doctors may not prescribe natural cannabis under any circumstances. The DEA listed synthetic THC in gel capsules, marinol, in Schedule III, which is available by prescription.
Federal law: Controlled Substances Act of 1970
Criteria for the highest [prohibited] drug schedule in US Code Title 21 Section 812(b): Schedule I (includes heroin, cannabis) requirements:
A. The drug or other substance has a high potential for abuse.
B. The drug or other substance has no currently accepted medical use in treatment in the United States, AND
C. There is a lack of accepted safety for use of the drug or other substance under medical supervision.
OCBC: Sales subject to federal ban
In United States v. Oakland Cannabis Buyers’ Coop., the Supreme Court held the doctrine of “medical necessity” does not provide an exemption to the federal ban on cannabis sales and distribution, even to seriously ill patients who would suffer imminent harm without it and who have tried all other alternatives. In the case of the Controlled Substances Act, the statute reflects a determination that marijuana has no medical benefits worthy of an exception (outside the confines of a Governmentapproved research project). — US v. OCBC, 532 U.S. 483, 491 (2001).
Ninth Circuit Court of Appeals
The Ninth Circuit has spoken loud and clear, first in its 2002 decision affirming a doctor’s First Amendment right to talk to a patient about medical marijuana in Conant v. Waltersand later in Raich v. Ashcroft. It is sending a message to the executive and legislature: There are limits on federal power. The Conant decision was appealed to the Supreme Court, which denied cert, confirming its validity. Raich has been appealed to the Court, which has decided to hear the case.
Conant: Doctors can recommend it
This is an appeal from a permanent injunction entered to protect First Amendment rights. The order enjoins the federal government from either revoking a physician’s license to prescribe controlled substances or conducting an investigation of a physician that might lead to such revocation, where the basis for the government’s action is solely the physician’s professional ‘recommendation’ of the use of medical marijuana. … The government has not provided any empirical evidence to demonstrate that this injunction interferes with or threatens to interfere with any legitimate law enforcement activities. Nor is there any evidence that the similarly phrased preliminary injunction that preceded this injunction, Conant v. McCaffrey, which the government did not appeal, interfered with law enforcement. The district court, on the other hand, explained convincingly when it entered both the earlier preliminary injunction and this permanent injunction, how the government’s professed enforcement policy threatens to interfere with expression protected by the First Amendment. We therefore affirm. — Conant v. Walters(9th Cir 2002) 309 F.3d 629, Cert denied Oct. 14, 2003
Raich: Some patients are protected
Fearing raids in the future and the prospect of being deprived of medicinal marijuana, the appellants sued the US Attorney General John Ashcroft and the Administrator of the DEA Asa Hutchison on October 9, 2002. Their suit seeks declaratory relief and preliminary and permanent injunctive relief. … Congress passed the CSA based on its authority under the Commerce Clause of the Constitution. … The appellants argue that the Commerce Clause cannot support the exercise of federal authority over the appellants’ activities. The Supreme Court expressly reserved this issue in its recent decision, US v. Oakland Cannabis Buyers’ Cooperative. … We find that the CSA, as applied to the appellants, is likely unconstitutional. …CONCLUSION: For the reasons discussed above, we reverse the district court. We find that the appellants have demonstrated a strong likelihood of success on the merits. This conclusion, coupled with public interest considerations and the burden faced by the appellants if, contrary to California law, they are denied access to medicinal marijuana, warrants the entry of a preliminary injunction. We remand to the district court for entry of a preliminary injunction consistent with this opinion. — Raich v. Ashcroft, 2003 US.App.LEXIS 25317 (9th Cir. Dec. 16, 2003)
Raich and WAMM injunctions
Federal courts have issued injunctions barring the federal government from raiding the medical gardens of Angel Raich, Diane Monson and the WAMM collective. The Supreme Court has since taken Raichon appeal. The outcome of that decision will have a profound impact on the medical marijuana issue.
In the California State Constitution, when a state law conflicts with federal statute, state officials are required to follow and enforce state law and leave federal law to federal agencies.
An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power: … (c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations. — California State Constitution Amendment III, Section 3.5
Qualified patients and caregivers have a right to use and cultivate
Proposition 215, The Compassionate Use Act of 1996, passed by more than 56% of the vote, creating broad protections for doctors, patients and primary caregivers who may use or cultivate marijuana legally. It did not legalize sales of cannabis. “Stop arresting patients” was a campaign theme, but it has not since been the case. The measure does not limit personal amounts of cannabis that can be grown or possessed, nor did it authorize the legislature or any other entity to set such a limit.
On this page are some key elements of this law and court decisions, or case law, that apply to cannabis use within the state. Two sections merit our notice here:
HS 11362.5(c): Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. — California Health and Safety Code
A qualified individual who is arrested and charged with possession or cultivation of any amount of cannabis can file a demurrer or seek a 995 or Mower hearing to get charges dismissed. They can also assert an affirmative defense in court to have charges dropped at a preliminary hearing or win acquittal by a jury.
CA Supreme Court’s Mower Decision
While not immune from arrest, a qualified patient should not be indicted. Once an approval is shown, the burden shifts to the prosecutor to prove that any cannabis so cultivated or possessed is beyond the scope of Proposition 215.
[A] defendant moving to set aside an indictment or information prior to trial based on his or her status as a qualified patient or primary caregiver may proceed under Penal Code section 995. … Of course, in the absence of reasonable or probable cause to believe that a defendant is guilty of possession or cultivation of marijuana, in view of his or her status as a qualified patient or primary caregiver, the grand jury or the magistrate should not indict or commit the defendant in the first place, but instead should bring the prosecution to an end at that point. … We agree that, in light of its language and purpose, section 11362.5(d) must be interpreted to allow a defense at trial. … As a result of the enactment of section 11362.5(d), the possession and cultivation of marijuana is no more criminal — so long as its conditions are satisfied — than the possession and acquisition of any prescription drug with a physician’s prescription. … the provision renders possession and cultivation of marijuana noncriminal under the conditions specified. — California Supreme Court, People v. Mower (2002) 28Cal.4th 457.
Appeals Court’s Trippet Decision
Benefits of legislative reform are retroactive and Prop 215 may cover transportation of cannabis; however, any amount of cannabis cultivated, possessed or transported must be reasonably related to current use.
As the Attorney General concedes, absent contrary indicia, ‘the Legislature is presumed to have extended to defendants whose appeals are pending the benefits of intervening statutory amendments which decriminalize formerly illicit conduct [citation], or reduce the punishment for acts which remain unlawful.’ … The rule should be that the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient’s current medical needs. … [T]ransportation may be allowed if quantity transported and method, time and distance of transportation are reasonably related to patient’s current medical needs. — California Court of Appeals, People v. Trippet (1997) 56 Cal.App. 4th 1532, 57 Cal.App.4th 754A
Appeals Court’s Spark decision
The physician’s opinion is not on trial.
A physician’s determination on this medical issue is not to be second-guessed by jurors who might not deem the patient’s condition to be sufficiently “serious.” — California Court of Appeals, People v. Spark (2004) C.A. 5th 08-02-2004 F042331. Cite as 04 C.D.O.S. 6972