Since the Cal Supreme Court’s “Kelly Decision,” quantity limits revert to the statewide HS 11362.5 (Prop 215 or CUA) standard of an amount “reasonably related to the patient’s current medical need,” and “collectives and cooperatives may cultivate and transport marijuana in aggregate amounts tied to its membership numbers”
Qualified patients in California can have any amount of cannabis consistent with their personal medical needs. Patients and caregivers with a state-issued ID card are immune from arrest and prosecution for quantities up to 8 ounces of processed bud or its equivalent and cultivation of 12 immature or 6 mature plants (Health and Safety Code 11362.77. This amount is not a limit on legal defense, according to “Kelly,” it is a Safe Harbor in the absence of evidence of illicit intent. In addition a physician can exempt a patient or caregiver from the statutory limits on safe harbor or establish a larger safe harbor, a prosecutor or law enforcement official may exercise discretion to tolerate larger quantities, and localities are authorized to expand the safe harbor amounts. Certain localities have allowed to possess the safe harbor amounts as described in this section.
Patients and caregivers without a state-issued ID card have the same legal defense but are subject to case-by-case scrutiny and their protection to the safe harbor is not clear. In either case, patients retain their right to defend gardens and dosages of any amount in court. However staying within local guidelines significantly reduces the likelihood that a patient or caregiver will face legal problems. We recommend that you stay comfortably below the upper limits.
Click here to see the CA Attorney General’s guidelines for medical marijuana.
Click here to see the California Board of Equalization tax board’s policies on medical marijuana sales.
California’s Local Guidelines
These limits are not legally binding, other than for purposes of immunity from arrest and prosecution; they are floor amounts intended to provide a safe harbor of immunity for any patient with a bona fide recommendation to be presumed in compliance with California Health and Safety Code HS 11362.5 (Prop 215), as long as there is no indicia of sales or commercial production. The qualified immunity defense remains for patients in possession of larger amounts. Collectives and patients charged with intent to sell should take note of special provisions in HS 11362.7. Larger amounts may be authorized by local cities or counties (use pull down menu above for more information).
SB 420 Statewide Default Patient Guidelines: To be as safe as possible from arrest and prosecution, patients and caregivers should stay below the medical marijuana immunity law passed by the California legislature, HS 11362.77, which sets a minimum statewide guideline of 6 mature plants OR 12 immature plants AND up to 8 ounces of processed cannabis flowers. Physician’s note exempts larger amounts. Cities and counties empowered to set guidelines that are greater than those amounts, but not less. This is explained in an open letter from the authors of the bill. Also see the Supreme Court’s People v Kelly decision at chrisconrad.com/.
To learn more about the history of implementation and malfeasance towards California’s medical marijuana laws, visit ccrmg.org/projects.html
The California Attorney General has issued a set of guidelines. These are not binding law, but give an idea of how prosecutors will consider the circumstances of a medical marijuana patient or garden.
Federal law does not recognize medical marijuana. The medical necessity defense cannot be used by people who provide marijuana for medical use, per the US Supreme Courts US v OCBC decision. The Gonzalez v Raich decision affirmed federal power to prosecutes cases that are legal under state law, no matter how compelling the circumstances or medical need. Federal law does not “trump” state law, it is a separate jurisdiction, as established in the US Ninth Circuit Court and US Supreme Court dispositions of San Diego v California (2010). The federal government has run its own medical marijuana program since the 1970s in which it provides an average of 6.65 pounds of marijuana per patient per year and grows medical marijuana at a DEA licensed farm at the university campus in Oxford Mississippi.