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
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.