Court rulings, policy memos

Chris Conrad, cannabis expert witness online resources: 

Overview of Federal Marijuana Rulings

Conant v McCaffrey: Freedom of Speech includes a physician’s right to approve medical marijuana usage by a patient.

HIA v. DEA: Ninth Circuit Court of Appeals held that hempseed food products are not “marihuana” and the DEA cannot restrict them.

OCBC Decision: Supreme Court: Sales of medical marijuana are not immune from federal prosecution under “medical necessity” defense.

Gonzalez v. Raich: Ninth Circuit ruling held that medical marijuana may be beyond the reach of the Interstate Commerce Clause, Supreme Court held that federal government can still arrest patients and caregivers in States where medical marijuana is legal.

Printz, Sheriff/Coroner, Ravalli County, Montana v. United States. Federal supreme court case in which the Court forbids federal agencies from requiring state agents to enforce federal laws.

San Diego v California. US Supreme Court refused to hear San Diego County’s arguments that federal law pre-empts state medical marijuana laws, leaving it stand at the US Appellate level which let it stand at the California Court ruling in NORML, et al., v San Diego (Download as PDF) that separate jurisdictions are entitled to set their separate laws without pre-empting one another.

Cole Memorandum to Federal Prosecutors

Deputy Attorney General James M. Cole on August 29, 2013 sent a memorandum to all federal prosecutors setting guidelines as to how to regard cases in states where marijuana has been legalized under state law. Click here to view as PDF.

Overview of California Marijuana Rulings

Landmark Ruling: People v Kelly Decision (2010): The Supreme Court held that the quantities are legal as a safe harbor for state ID cardholders but are unconstitutional as a limit on a qualified patient’s legal defense. It also noted that the state ID card system is constitutional and collectives operating under Health and Safety Code 11362.775 are lawful throughout the state. Click here to view as a PDF (320k) Chris Conrad’s cannabis expert testimony cited multiple times.

 

Anderson: This 2015 ruling emphasized the medical marijuana collective defense. “The jury instructions failed to explain [that] under Health and Safety Code section 11362.775, which legalizes the operation of cooperatives and collectives for cultivation of marijuana by groups of patients[,] a lawful cooperative or collective c an consist of some patient members who grow marijuana and other patient members who compensate the growers with money in exchange for marijuana” Click here to view as a PDF.

Berry Decision: Patients use of medical marijuana on probation or parole is not guaranteed, even when synthetic THC is authorized for use. “The marijuana condition prohibits conduct legal under California law but nonetheless bears a reasonable relation not only to crimes of which he was convicted but also to his future criminality, so we will reject his argument that the imposition of that condition and the violation of his probation for his breach of that condition were an abuse of discretion. … With the express acquiescence of his attorney, the court modified the marijuana condition to require that he not “own, possess, be in control of,” or “be under the influence of marijuana,” “[e]ven if prescribed by a licensed physician,” but to allow him to use a prescription medicine containing THC if prescribed by a licensed physician, and reinstated probation.” (2006) Cal.App.4th G031061.

Bearman Decision: Appellate Court: Judicial review of good cause is required before the California Medical Board can gain access to private physician / patient documents.

Bergen Decision (2008) determined that qualified patients making edibles, hash and kief are clearly legal but using butane to make hash oil is chemical extraction that is not covered by the medical use statutes — although the oil product is legal. Click here to view as a PDF (44k).

Chakos Decision: “Nowhere in this record do we find any substantial evidence that the arresting officer had any expertise in differentiating citizens who possess marijuana lawfully for their own consumption, as distinct from possessing unlawfully with intent to sell.” Click here to view as a PDF (48k).

Colvin Decision, the Second Appellate District, Division Three rejected prosecutors’ claim that all collective members must participate in cultivation. The court reversed the conviction of William Frank Colvin, who was convicted for transportation after being denied a medical marijuana defense under SB 420 (HSC 11362.775) because he was not engaged in the cultivation process. The court specifically re-affirmed the legitimacy of dispensaries in this situation. Download as PDF.

Galambos: Prop 215 CUA caregiver defense not available to one who helped others obtain medicinal marijuana unless strict standard is met. (Case preceeded SB420 (HS11362.775) that allows patients to associate collectively to cultivate and provide cannabis.) (2002) 104 Cal.App.4th 1147, 1152.

Jackson Decision (2012): “As we interpret the MMPA, the collective or cooperative association required by the act need not include active participation by all members in the cultivation process but may be limited to financial support by way of marijuana purchases from the organization.”Download as PDF.

Jones Decision: Prop 215: A patient can testify about their oral medical approval when the physician is not willing or available. All defense needs to raise is a reasonable doubt of guilt, not preponderance of evidence or any other standard. “Thus, a physician could approve of a patient’s suggested use of marijuana without ever recommending its use.” Chris Conrad’s consulted on case but did not testify.

Kelly Decision: Three Appeals courts ruled the quantity limits passed by the legislature in SB420 were unconstitutional .Chris Conrad testified at Kelly’s original Long Beach trial and is cited. The Supreme Court held that the quantities are legal as a safe harbor for state ID cardholders but are unconstitutional as a limit on a qualified patient’s defense in court. It also held that the state ID card system is constitutional and that collectives operating under Health and Safety Code 11362.775 are constitutionally protected throughout the state. Click here to view as a PDF (320k) Chris Conrad’s cannabis expert testimony cited multiple times.

Kelly Appeals Court Decision. Chris Conrad testified at the original Long Beach trial and is cited. Ruling that was reviewed by the Supreme Court (Click here to view as a PDF (144k). Christopher Conrad testimony, mention 1. Christopher Conrad testimony, mention 2.

Phomphakdy Appeals Court Decision: Chris Conrad testified at the original Sacramento trial and is cited. Held that Quantities listed in SB 420, HS 11362.77(a) are unconstitutional to the extent that they are taken as limits affecting patients’ rights or legal defense. Chris Conrad’s testimony, mention 1 . Chris Conrad’s testimony, mention 2.

Archer Appeals Court Decision. Chris Conrad testified at the original San Diego trial. SB 420 quantity limits held unconstitutional by Appeals Court.

Kha Decision: Appellate Court: Local police must return medical marijuana to patients if found to be lawful under state law, regardless of federal law. Click here to view as a PDF (120k). “Mindful as we are of the general supremacy of federal law, we are unable to discern any justification for the City or its police department to disregard the trial court’s order to return Kha’s marijuana. The order is fully consistent with state law respecting the possession of medical marijuana, and for all the reasons discussed, we do not believe the federal drug laws supersede or preempt Kha’s right to the return of his property. That right has its origins in the CUA and MMP, but it is grounded, at bottom, on fairness principles embodied in the due process clause. Those principles require the return of Kha’s property.”

Lake Forest v Evergreen Caregivers, the Fourth Appellate District, Division Three ruled that local governments may not prohibit medical marijuana dispensaries altogether, PROVIDED that they are at sites where medical marijuana is “collectively or cooperatively cultivated.” The court found that SB 420 (HSC 11362.775) obliged local governments to accommodate collective/ cooperative cultivation projects. The Lake Forest ruling seems to be inconsistent with Colvin, insofar as the latter authorized transportation from Humboldt Co to LA, while the former limited transportation to “collective amounts at the collective site.” Download ruling as a PDF.

Los Angeles v AMCC Collective, Second Appelate District, Division One ruled that Los Angeles County’s “complete ban” on medical marijuana is “preempted” by state law and, therefore, void. “[T]he repeated use of the term ‘dispensary’ throughout [Health and Safety Code section 11362.768] and the reference in subdivision (e) to a ‘storefront or mobile retail outlet’ make it abundantly clear that the medical marijuana collectives authorized by section 11362.775 are permitted by state law to perform a dispensary function.” The AMCC further held that, “[Los Angeles] County’s total, per se nuisance ban against medical marijuana dispensaries directly contradicts the Legislature’s intent,” and called that contradiction “direct, patent, obvious, and palpable.”

Mentch Decision Court limited use of the legal term “primary caregiver” to “the person exempted under this act who has consistently assumed responsibility for the housing, health or safety of that person.” In other words, a collective member is not a caregiver, they are patients and if you say the wrong word, cops are trained to arrest you for that.. This rulingdid not limit the activities of patient / caregiver collectives operating under Health and Safety Code 11362.775. Chris Conrad testified at the original Santa Cruz trial. (2008) 45 Cal.4th 274, 45 Cal.4th 308b

Mitchell: This 2014 decision requires that an employee must also be a member of a collective in order to be paid for their services. Download ruling as a PDF.

Mower Decision Supreme Court, Prop 215: Supreme Court upholds right to patient’s benefit of the doubt and prosecutor’s burden of proof, encourages pre-trial disposition of medical marijuana-related charges on limited immunity, not merely an affirmative defense at trial. Chris Conrad testified at the original Tuolumne County trial and is cited. Testimony of Chris Conrad

Orlosky: This 2015 decision reinforces the fact that 11362.775 collectives can be very casual in their construct. “Because the informal nature of the cultivation arrangement in this case did not foreclose application of the collective cultivation defense, the court was required to instruct on the defense if there was substantial evidence to support it.” Download ruling as a PDF.

Peron Decision: Appellate Court: “Proposition 215 does not allow ‘unlimited quantities of marijuana to be grown anywhere.’ It only allows marijuana to be grown for a patient’s personal use. Police Officers can still arrest anyone who grows too much, or tries to sell it.” Medical marijuana caregivers have a right to remuneration for services that are consistently provided to a patient.

Spark Decision: Juries and judges do not get to “second guess” a doctor’s approval, condition need not be determined to be “serious” for a valid approval.

Rigo Decision : The CUA defense cannot apply to a physician’s post-arrest ratification of self-medication on marijuana. People v. Rigo (1999) 69 Cal.App.4th 409, 412.

Riverside: The Supreme Court affirmed in 2014that cities can either allow, limit or ban dispensaries. Download as PDF.

Rossi Decision: Appellate Court, SB 420: Retroactive application of the law extends benefits of changes in penalty, but later-enacted crimes or penalties are not retroactive.

San Diego v NORML: Federal law does not trump state law, California counties and agencies have to follow State law, not federal. Download as PDF.

Tilehkooh Decision: Appellate Court, SB 420: Use of medical marijuana is legal for a qualified patient on probation.

Trippet Decision: Chris Conrad testified at the Humboldt County trial. Appellate Court, Prop 215: Patients not entitled to “unlimited amounts,” but transportation and possession are authorized. “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. What precisely are the “patient’s current medical needs” must, of course, remain a factual question to be determined by the trier of fact.” No discussion of Conrad’s testimony.

Urziceanu Decision: Appellate Court, SB 420: Rights to collectively obtain, cultivate and dispense not protected by HS11362.5 but they are protected by HS 11362.7. Chris Conrad testified at the original Sacramento trial and is cited. Testimony of Chris Conrad

Williamson Decision: Appellate Court: Personal (non-commercial) marijuana cultivation can get a deferred entry of judgment and diversion from prison.

Windus Decision: Doctor’s approval is not an annual requirement and can be good for years; doctor’s dosage is advisory and does not restrict patient from having a “reasonable” amount, even if less than what a patient has.

Wright Decision: California Supreme Court, SB 420: holds that sponsors of Senate Bill No. 420 (2003-2004 Reg. Sess.) made clear that, although couched in mandatory terms, the amounts set forth in section11362.77, subdivision (a) were intended “to be the threshold, not the ceiling.” This decision laid the groundwork for People v Kelly (2010).

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California Attorney General’s published opinions

California Attorney General medical marijuana guidelines. These are not binding law, but give an idea of how prosecutors will consider the circumstances of a medical marijuana patient or garden.

AG’s Opinion 04-709 regarding SB 420 ID card program

AG’s Opinion 03-411 regarding Medical Marijuana definition to include hashish and preparations. Note: Bear in mind the Bergen decision above that determined making hash oil using flammable agents (butane, ether, etc.) is not legal, even if intended for medical purposes. It is the extraction process itself that is illegal.

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Depublished, non-binding decisions:Appellate thought on cannabis* (Not binding precedent.)

* Arbacauskas Decision: Chris Conrad testified at the original Sacramentop preliminary hearing. Appellate court rejects the refiling of charges against a patient once a judge has dismissed charges. (Not binding precedent.) Chris Conrad testimony, mention 1. Chris Conrad testimony, mention 1.

* Russell Decision: Medical marijuana cultivation is not probable cause for a general search warrant. (Not binding precedent.)

* Mentch Appellate Decision: Overturned on review by state Supreme Court (see above) based on the Prop 215 definition of a “caregiver” and its earlier Peron Decision that by definition a caregiver must do more than provide medical marijuana. Chris Conrad testified at the original Santa Cruz trial. Appellate Court cited Conrad and held that under SB 420, a jury should hear and decide arguments about a defendant’s caregiver status and compensation arrangements to determine if reasonable. It also held that SB 420′s expansion of immunity as a “safe harbor” is retroactive in its application. Testimony of Chris Conrad

* Decisions were published and later depublished or de-certified. This means they do not set binding precedent, but may be referenced as an indicator of Appellate thought. The High Court does not explain its reasoning for depublishing a decision, so any undue influence by law enforcement is impossible to determine.

Some jury decisions on medical marijuana cultivation

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