District attorneys are using the vagueness of the medical marijuana law to prosecute more people. And across the country, kidnappers are getting away, rape kits are not being tested due to funding problems, and murder cases are left unsolved - all evidence of scary misappropriation of resources fueled by district attorneys' passion to be drug warriors.
In the case of People v. Kelly, the California Supreme Court this month held that the quantity limitations in the medical marijuana statutes are unconstitutional. Other decisions have crystallized the standard by which a court or jury determines if a medical marijuana defendant's conduct was legal: Whether the quantity possessed is reasonable for that defendant given his medical needs.
In 1996, the voters of California passed the Compassionate Use Act, which provided immunity from prosecution for medical marijuana patients who cultivated or possessed marijuana. This referendum was codified in California Health and Safety Code 11362.5.
In 2004, the Legislature added 18 additional sections to the Health and Safety Code in order to promote more patient access to medical marijuana by explicitly immunizing possession for sale and sales. The Legislature also added language that allowed for collective cultivation among patients or their primary caregivers.
This language has been interpreted by the court of appeals to allow for medical marijuana storefront dispensaries so long as they are collective cultivation efforts. The statutes included 11362.77 of the Health and Safety Code, which contained language limiting the amount of marijuana a patient could possess to six mature plants, 12 immature plants, or 8 ounces - unless the doctor recommended more.
The state Supreme Court ruling on Kelly found that the Legislature unconstitutionally limited the rights afforded under the Compassionate Use Act (to have an amount that is consistent with medical needs). The case law relied upon by the court indicates that the Legislature may enact legislation in an area related to a voter referendum but may not amend a statute or take away rights given by the referendum.
Kelly also seems to suggest that defendants should acquire identification cards from their local boards of health if want to be immune from arrest if they are under the quantity limits or possess an amount of marijuana below what their doctor explicitly recommends.
Now, it's up to prosecutors to follow their obligation to do justice and follow the letter and spirit of the medical marijuana law to protect safe access to marijuana for patients.
The public should write to the Los Angeles District Attorney Steve Cooley to say that they don't want resources being used to prosecute marijuana cases, and that they will not vote for him if the War on Marijuana continues to be top priority for Los Angeles.
By: Allison Margolin
Allison Margolin is a criminal defense attorney practicing state and federal criminal law in Los Angeles.
Source: Daily News - Los Angeles
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