A new California Supreme Court ruling brings needed clarity to state cannabis laws and vindicates the former Del Norte County medical marijuana guidelines.
Like the state guidelines, a county ordinance can now provide patients with a legal safe harbor of qualified immunity from arrest and prosecution, but it cannot be used in court as a limit on what a patient or collective can legally cultivate or possess.
The landmark ruling also affirmed that California’s state medical marijuana laws are constitutional, including the right to form patient collectives that grow and sell medical marijuana to their members.
After voters passed Prop 215 in 1996, the Supreme Court’s Mower decision gave patients limited immunity from prosecution for a “reasonable” supply. Del Norte adopted an ordinance based on government research. Then-Supervisor Jack Reese authored clear-sighted county guidelines that allowed each patient or caregiver a pound of cannabis bud and a 100 square-foot garden area — about the size of a small bedroom. That approach was flexible to the needs of the grower — whether it meant a few large plants outdoors or many small ones indoors.
That quantity is quite conservative when compared to the average patient dosages on record. Patients in the federal IND program get more than 6 pounds a year. In Canada the standard is 4.4 pounds, and in Holland 3 pounds. Oregon and Washington state each allow 24 ounces.
After the California legislature passed SB 420 (2003), Del Norte County defaulted to the arbitrary and unworkable statewide quantities, eight ounces and 12 immature or six mature plants per patient. Due to confusing language in the law, most prosecutors argued that the guidelines were a legal cap on a patient’s legal defense. That claim is now laid to rest as unconstitutional.
The High Court’s unanimous Jan. 21 People v. Kelly decision determined once and for all that the stated quantities protect qualified patients from arrest and prosecution but do not burden their legal defense. That does not mean patients can possess unlimited amount of cannabis, it means that having a reasonable amount is lawful.
The question is what is a reasonable amount? The answer is, that’s a patient’s confidential medical information protected by HIPPA.
The problem is police are not doctors, patients or cannabis gardeners. They do not have the authority to practice medicine. Officers can make arrests all day long but the district attorney’s office might not be able to prosecute the cases, causing a situation that wastes the officers’ and courts’ time, and taxpayers’ dollars. This causes a situation that’s potentially rife with hard feelings and opens up Del Norte County to lawsuits.
As an example, if a grower with a 215 (medical marijuana) recommendation is arrested for cultivation and officers seize his or her plants, but the district attorney’s office decides it doesn’t have a case, the grower may be able to sue the arresting agency for the value of the uprooted plants.
City and county officials are the right people, and it’s time they do the right thing. The Kelly decision left intact the structure of state guidelines — including local authority to set a local safe harbor for patients above the statewide threshold amounts. We invite the Del Norte County Board of Supervisors to give due guidance to law enforcement and restore its former guidelines, but with a more reasonable supply of 3 pounds per patient, consistent with Humboldt, Santa Cruz and Sonoma counties.
The new court ruling and the Obama administration’s memo on medical marijuana make it official that cannabis is here to stay as part of the state economy. The confusion has been lifted, now it is time for the county to take steps to enable collectives and regulate dispensaries.
Given the vagaries of agriculture and personal medical use, the debate around medical access to marijuana is not likely to be fully resolved until the larger issue of its non-medical use is brought under control. Fortunately, an initiative expected to be on the November ballot addresses that issue. It would make an ounce legal for adults to possess or share, so long as they keep it away from minors. It would also allow adults to have very small personal gardens, and authorize communities to tax and regulate sales as long as they are limited to adults 21 years and above.
Add to that mix the state legislation that has been introduced and we are at an historic moment. Clearly, California has grown up enough to get real about cannabis.
Chris Conrad, author of “Cannabis Yields and Dosage,” wrote this in conjunction with Redwood Coast Collective.