Kyle Curtis

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.