Article Bank # A-72
Defending Marijuana Cases Involving Medical Marijuana After
It has been clear to criminal defense lawyers for years that many of our clients in marijuana offenses were using the marijuana as a form of self medication. However, the practitioner had no simple way to raise these issues in marijuana prosecutions. Medical necessity defenses or Constitutional challenges to the criminal statutes were difficult to win. The defense lawyer was left to pleading to the hypothetical better instincts of the prosecutor or judge, or hoping for jury nullification to save the medicinal marijuana user. Legislative attempts to address the issue were of limited success in California and then when a solution was reached, it was vetoed by the Governor.
In response to this problem, a citizen’s initiative was placed on the ballot in November, 1996, in the form of Proposition 215, the “Medical Use of Marijuana” initiative, also known as the “Compassionate Use Act”. It was approved by 56% of those participating in the state-wide election and has been in effect since January 1, 1997. The initiative was rather vaguely worded, perhaps intentionally, and this has led to wide spread confusion over its application. However, some counties have taken a pro-active role in effectuating its goals and in all jurisdictions the defense is one which any criminal law practitioner should be ready to use. At last we have a workable defense for many marijuana prosecutions.
The “Compassionate Use Act” (the “Act”) makes it legal under California law for seriously ill patients and their primary caregivers to possess and cultivate marijuana for use by the patient if the patient’s physician recommends such treatment. In particular, it exempts the patient, or the patient’s primary caregiver, from prosecution under California Health and Safety Code §11357, relating to the possession of marijuana, and §11358, relating to the cultivation of marijuana. The Act is now codified in California Health and Safety Code §11362.5.
One problem with Proposition 215 is the extent to which it may be contrary to federal law. The federal “Controlled Substances Act” prohibits the manufacture and distribution of marijuana and the possession of marijuana with the intent to manufacture or distribute. (See 21 U.S.C. §841(a)(1).) In particular, the Controlled Substances Act established a comprehensive regulatory scheme which placed controlled substances in one of five “Schedules” depending on each substance’s potential for abuse, the extent to which each may lead to psychological or physical dependence, and whether each has a currently accepted use in the United States. (See 21 U.S.C. §812(b).) Congress determined that “Schedule I” substances have a “high potential for abuse,” “no currently accepted medical use and treatment in the United States,” and “a lack of accepted safety for use of the drug or substance under medical supervision”. 21 U.S.C. §812(b)(1) Schedule I substances are strictly regulated; no physician may dispense any Schedule I controlled substance to any patient outside of a strictly controlled research project registered with the D.E.A. and approved by various federal agencies.
Congress irrationally placed marijuana in Schedule I at the time it passed the Controlled Substances Act and its designation has not changed since then. As a result of this federal law and a Clinton administration which has a strategy of appearing tough on drugs, the United States Attorney’s Office has been active in attempting to curtail the implementation of Proposition 215. Initial threats and saber rattling involved proceedings against physicians who might prescribe or recommend marijuana. These threats were somewhat curtailed by the case of Conant v. McCaffrey, 172 F.R.D. 681 (N.D. Cal.1997) which provided that physicians have a First Amendment right to freely counsel their patients about treatment options including marijuana.
The federal government also moved against various “cannabis clubs” which sprang up throughout the state to provide marijuana to patients who needed it. The federal government’s lawsuit against six of these clubs has had limited success in closing some of the clubs, but has met with stiff resistance. It is currently being appealed in the 9th Circuit. Whatever the results of these proceedings against the cannabis clubs or cooperatives, the usefulness of Proposition 215 for individual patients and individual caregivers has not been significantly threatened by the federal government.
So the law remains an important tool for the criminal defense practitioner. Several recent cases have begun to delineate the scope and interpretation of Proposition 215 as it relates to questions which were left open by the language of the Act. These issues are discussed below.
Patient vs. Primary Caregiver
The Act provides protections for both the patient and that patient’s “primary caregiver”. The patient is obviously a person who asserts the need for medical marijuana to treat his or her own illness. The primary caregiver is defined as “The individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person”. It is important to note the conjunctive “or” in the definition so that any person who has consistently assumed responsibility for the health or safety or housing of a person can qualify as a “primary caregiver”. The case of People ex rel. Lungren vs. Peron (1997) 59 Cal.App.4th 1383 held that a large club could not be a primary caregiver and that the Act’s specification of “individual” precluded such a status to such an organization. Various smaller cooperatives and groups wherein the organizational leadership has a personal caregiver relationship with each of the members of the cooperative, however, might pass the test set forth in the Peron case. As long as your client in a criminal case is an “individual”, as is generally the case, then the Peron decision should not be a problem for the criminal defense lawyer.
Cultivation, Possession, And Other Offenses
The Act provided a specific defense only to §11357, possession of marijuana, and §11358, cultivation of marijuana. However, the court in People v. Trippet (1997) 56 Cal.App.4th 1532 interpreted Proposition 215 to apply to other marijuana offenses if necessary. It held that although Proposition 215 does not exempt a seriously ill patient and her primary caregiver from Health and Safety Code §11360, which prohibits the transportation of marijuana, a defendant in a criminal case might have a Proposition 215 defense to a charge of illegally transporting marijuana if “the quantity transported and the method, timing and distance of the transportation are reasonably related to the patient’s current medical needs”. Trippet, supra. The court reasoned that Proposition 215 would make no sense if the patient’s primary caregiver would be guilty of a crime for “carrying otherwise legally cultivated and possessed marijuana down a hallway to a patient’s room”. Id. at 1550. The same could obviously be true if the caregiver were driving it in a car from the area where it was acquired for the patient.
The same rationale applies to a defense to the charge of possession of marijuana for sale (H&S §11359) if the prosecution theory is that the sale was to be an exchange of consideration from the patient to the caregiver. The court in Peron, supra, stated that although there was not a defense to possession of marijuana for sale simply on the grounds that Mr. Peron’s club was a non-profit operation as he testified, the court did acknowledge that primary caregivers for §11362.5 patients “should not be precluded from receiving bonafide reimbursement for their actual expense of cultivating and furnishing marijuana for the patient’s approved medical treatment”. Peron, supra, at p. 1399. The court then referred to language from Proposition 215 approved by the voters which said “This will ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana…” Although the court did not specifically reach the issue, this would lead to the conclusion that if the intent of a person’s possession of marijuana was to provide it to patients in exchange for reimbursement for the expense of cultivating the marijuana, this would negate the specific intent required for the crime of possession for sale of marijuana. Furthermore, if the expense was incurred in acquiring the marijuana for the patient, a reimbursement for that expense should meet the same approval.
Implied defenses to other marijuana related charges such as Health and Safety Code §11366, maintaining a place for the production or use of marijuana, should also be viable if they meet the standard set forth in Trippet that the activity is “reasonably related to the patient’s current medical needs” so as not to make the goals of Proposition 215 meaningless.
What “Illnesses” Are Covered By Proposition 215?
Section 11362.5(b)(1)(a) states:
“To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, aids, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.”
The definition is broad and includes the catch-all “any other illness for which marijuana provides relief”. This is the law and even if prosecutors or judges do not like it they should apply it in good faith. Marijuana has a long history of medical use for all of the specific illness set forth in §11362.5 as well as other conditions that are being reported anecdotally by patients. The Act does say that it is ensuring that “seriously ill Californians” have the right to obtain medical marijuana, but seriousness is obviously a subjective standard that might exclude a minor scratch on the knee, but does not preclude any condition that is proving to be a serious problem for the patient. For a review of information on the medical uses of marijuana, see Marijuana, The Forbidden Medicine, by Lester Grinspoon, M.D. and James Bakalar or Marijuana: Medical Papers, by Tod Mikuriya, M.D. It should be stressed, however, that to prove a client’s innocence does not require medical testimony as to the efficacy of the treatment for marijuana by any scientific standard, but simply the recommendation of a doctor to the patient is enough.
The Physician’s Recommendation Or Approval
It is important to note that the Act does not require a written “prescription” from the doctor. A doctor has no right to “prescribe” marijuana under federal law as it is a Schedule 1 drug. All that Proposition 215 requires is that a physician recommend or approve of the use of the medical marijuana. It provides the defense “for the personal medicinal purposes of the patient upon the written or oral recommendation or approval of a physician”. So the approval can be either written or oral and the Act refers to a “recommendation” or an “approval”. Therefore, it is sufficient to satisfy the Act if in conversation with a patient who explains the salutary effects of marijuana on his or her condition the doctor gives verbal approval of the continued use. In some cases doctors simply make an entry in the medical records of the conversation and the approval. This medical record would then be helpful in providing evidence of the approval at trial. Some physicians have developed specific forms for indicating approval of the use of marijuana. Two examples are attached to this document as Exhibits A and B. These have been especially helpful in providing documentation to cannabis cooperatives or other associations who are providing marijuana to verified patients. The written approval can also be helpful with law enforcement officers on the street who may be leery of accepting a patient’s representation that she has approval.
But the approval does not have to be in writing. If the matter comes to trial, the patient’s testimony that the doctor approved of the use should be sufficient if believed by the trier of fact. The defendant’s testimony about the doctor’s statement is not hearsay because it is offered to prove the making of a statement which is a relevant fact. Some authorities use the term “operative facts” to describe evidence of a declarant’s statement offered to prove the mere making of such statements as relevant to an issue in a case. (See Jefferson’s California Evidence Bench Book, Section 1.44 and 1.45 and Witkin, California Evidence, Section 588 (3rd Edition 1986).) Among the categories which represent typical instances of non-hearsay use of a declarant’s statement offered to prove the making of that statement are words of consent and words of authorization. This is exactly what is at issue in a Proposition 215 case. Even if the doctor is called as a witness by the prosecution and denies specifically recommending the marijuana, the trier of fact would have good reason to believe the defendant’s statement that he had approval from the doctor given the motive the doctor has in being less than candid to protect his or her federal license to prescribe drugs.
Exactly what a “physician” is under the Act is not settled. Would it apply to a chiropractor or a psychologist? Webster’s New Collegiate Dictionary defines physician as: “1) A person skilled in the art of healing; specific: a doctor of medicine”. Certainly an M.D. or a psychiatrist are physicians, but a chiropractor or psychologist might well qualify also as persons skilled in the art of healing.
The most recent case interpreting Proposition 215, People v. Rigo (1999) 69 Cal.App.4th 409, 81 C.R.2d 624, held that the approval by the physician must be given before the incident leading to the arrest and that approval subsequent to the offense does not comply with the Act. Therefore, the conversation with the physician and the oral or written approval or recommendation must have been accomplished before the defendant is busted. If there is a doubt in the minds of the law enforcement officers or prosecution team about the validity of a client’s approval, however, a subsequent written approval to confirm an earlier oral conversation would certainly be helpful. Or, if the physician who had orally recommended it prior to the incident were unavailable or unwilling to affirm the recommendation, a subsequent approval from another physician would also add weight to the defense.
How Much Marijuana Can The Patient Or Caregiver Have?
One of the primary problems in the application of Proposition 215 has been determining how much marijuana a person should be able to possess or cultivate under the law. The Act itself provided no specific guidance and various jurisdictions have struggled in different ways to address the problem. Initial guidelines from the Office of Attorney General Dan Lungren, no friend of the Compassionate Use Act, indicated that no more than 2 plants per patient or an ounce or two of processed marijuana should be allowable. The reality however is that different patients require different amounts of marijuana and different plants and growing conditions produce varying amounts and quality of the product.
The City of Oakland has taken one of the most comprehensive approaches to dealing with the issue and has set forth guidelines for enforcement of Proposition 215 in its jurisdiction. The Oakland working group determined that they would base their estimates of need on current testing being done by the Food and Drug Administration on the medical uses of marijuana. In their experiments the patients are given a monthly ration of 300 cigarettes each weighing approximately .9 grams. This is approximately ½ pound per month. Oakland determined that a reasonable amount of processed marijuana for a patient to possess would be a three month’s supply at half a pound per month for a total of 1½ pounds. A reasonable amount of processed marijuana for a caregiver to possess would be the number of substantiated patients time 1½ pounds.
The group also attempted to determine the reasonable number of plants to be possessed. Outdoor plants are harvested once a year while indoor plants can be harvested quarterly. Outdoor plants are typically larger and therefore generate a greater yield. In determining the reasonable number of outdoor plants, the group considered the fact that they only produce once a year and the reasonable harvest should be capable of yielding the annual supply of 4 three-month’s supplies, 6 pounds. It was estimated that 30 adult plants should yield this harvest. An adult plant is a female that has begun flowering. In order to ensure that the patient is capable of producing 30 flowering plants they should be allowed to plant twice that number, 60 plants. They can maintain all 60 plants until they have 30 flowering plants. Once they have 30 flowering plants they must destroy all of the rest.
For indoor marijuana plants, it was established that it will take 48 plants to yield 1½ pounds in a three month period. As above, the patient should be allowed to plant twice the number, 96 plants, and maintain them until 48 are flowering. Once they have 48 flowering plants they must destroy the rest of the flowering plants. However, they can continue, for the next cycle, to possess up to 96 non-flowering plants for a cumulative total of 144 plants. The reasonable number of plants for a caregiver to possess would be the multiple of the number of substantiated patients being cared for times the type of plant, indoor or outdoor.
These numbers are based on the initial assumption that a medical patient may be using 10 cigarettes per day as provided by the Food and Drug Administration in their protocol. This is what they have provided to glaucoma sufferer Robert Randall for many years and he has found success in treatment of his disease.
The language of People v. Trippet, supra, in relating to the defense as to the charge of transportation of marijuana stated the test as being the amount “reasonably related to the patient’s current medical needs”. Therefore it is a matter of proof as to the patient’s medical needs. This could come from the patient’s testimony or from an expert who is familiar with usage patterns. The guidelines from the City of Oakland, however, should be instructive to any court on the issue of the amount that could be possessed or cultivated.
Burden Of Proof
Prosecutors are fond of saying that Proposition 215 provides an affirmative defense which must be raised by the defendant at trial. Nowhere in Proposition 215 is there such a limitation. In fact, the Act states that it is “to ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.”
If the patient or caregiver is subject to criminal prosecution, however, the question arises as to who bears the burden of proof on the issue of whether the marijuana was being used medicinally. The burden of proof in this case should be the same as that used in the prescription defense to any charge of possession of a controlled substance. As set forth in CALJIC §12.30.1 and §12.30.2, this burden is that of raising a reasonable doubt as to the defendant’s guilt of possession of the substance without a prescription. There is no reason for Health and Safety Code §11362.5 to have any other burden. In 1998 the CALJIC drafters proposed new CALJIC §12.24.1, Defense of Compassionate Use. In their proposed CALJIC instruction they stated that “The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the elements of this defense, namely a physician recommended or approved orally or in writing the defendant’s personal use of marijuana and the amount of marijuana possessed or cultivated was reasonably related to the defendant’s then current medical need”.
There is nothing in the statute or the law requiring that the defendant has the burden of proving these elements by a preponderance of the evidence. Proposition 215 did not set forth any particular burden, but it also did not say that it is an affirmative defense which must be proven by a particular burden. Just as in a case where a defendant asserts that he had a prescription for the use of a controlled substance, the only burden on the defendant should be to “raise a reasonable doubt as to his or her guilt of possessing or cultivating marijuana for reasons other than personal medical purposes”. A proposed modification of CALJIC §12.24.1 is set forth as Exhibit C entitled “The Defense of Compassionate Use”, including the revised burden of proof and other language related to the requirements of the Act.
Problems Of Proof And Use Of Experts
The voters of the State of California approved by a large majority an act which said that the possession or cultivation of marijuana for medical purposes was legal. A defendant should not be forced to call experts to prove to the jury that marijuana does have medical uses or that the amount of marijuana possessed was reasonable for the defendant’s use. These matters should be provable from the testimony of the patient, caregiver, family and perhaps the physician involved. However, in cases where the political winds are not blowing favorably in the direction of the defendant, it may be necessary to enlist the assistance of expert witnesses to speak to the efficacy of marijuana for the particular condition involved and to issues regarding the amounts reasonably consistent with the patient’s medical needs.
Prosecution experts have historically overstated yields from marijuana plants as well as understated the amounts which individuals might need for personal use. Defense experts are available who, based on their own experience or research, can testify to more realistic assessments of the yield to be expected from marijuana plants and the amount of marijuana that might be consumed by a user. A sympathetic fact finder would not require such testimony, but in cases involving larger amounts of marijuana or serious consequences due to the defendant’s sentencing exposure or the venue involved, expert testimony may be crucial.
Use In Negotiation
Given that much of the job of the criminal defense lawyer involves whining and begging for fair treatment for their clients, Proposition 215 has provided us with a whole new arsenal. Even if the defendant has a questionable claim under Proposition 215 such as if the physician’s approval was given after the arrest or if the amount of marijuana cultivated or possessed seems exorbitant under any definition of reasonable medical use, the fact of some medical efficacy can be extremely helpful in negotiating a reasonable disposition with the district attorney and the judge. Sometimes the marijuana being grown is partly for medical purposes and this can help in plea negotiations and/or sentencing. Sometimes the use by a patient is for a condition that would not meet medical approval, but is something that a sympathetic prosecutor could relate to. Juries have already shown their willingness to give the defendants in medical marijuana cases the benefit of the doubt, so a colorable defense related to medical marijuana can help in the resolution of any case where the defense could be raised. Letters from physicians, cannabis clubs, family members or even the defendant if appropriate can be helpful in these negotiations.
Other Defenses And New Approaches
Proposition 215 and its progeny create numerous opportunities for criminal defense lawyers. Each fact situation presents different challenges obviously, but being able to raise the defense in front of a jury presents the opportunity of an acquittal in any case. Because of the uncertainty of the law, some clients may be arrested who are operating under mistaken factual assumptions. As a result, the mistake of fact defense may apply to their conduct. A person may be acting as a primary caregiver for a patient who does not have valid medical authorization. If the caregiver reasonably and in good faith believes that the patient is qualified for medical marijuana, however, his or her actions should be protected by the doctrine of mistake of fact.
The case of People v. Lucero (1988) 203 Cal.App.3d 1011, 250 Cal.Rptr. 354 presents a similar situation where a mistake of fact defense was applicable. In Lucero, the Court of Appeal held that the trial court erred in refusing a mistake of fact defense instruction relating to the immunity under Health and Safety Code §11367. The defendant in Lucero mistakenly believed that he was acting as an undercover officer. His honest and reasonable belief in circumstances which if true would make him immune from prosecution, constituted an excusable mistake of fact. Similarly, a caregiver acting on an honest and reasonable belief in circumstances that if true would qualify him as a caregiver would also be allowed to raise the mistake of fact defense.
The emerging law related to medical marijuana is an area where defense lawyers can do good for their clients and assist the cause of justice at the same time. At long last California has the beginnings of a system to provide for the compassionate use of marijuana by people who consume it for medicinal purposes. This is one area where we actually have the law on our side. Use it to your best advantage.
My Patient _______________________________________________
is suffering from ________________________________________
We have discussed the medicinal benefits of cannabis usage as a therapy for this condition and I have approved its use. We have discussed the risks associated with his/her decision to use cannabis as a treatment for this condition. I would consider prescribing cannabis for my patient’s condition if I were legally able to do so. If my patient chooses to use cannabis therapeutically, I will monitor his/her condition and provide advice on his/her progress.
City, State, Zip
SECTION 11362.5(d) states that:
“(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.”
SECTION 11362.5(2)(c) states that:
“(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.”
Based upon my reliance on the above cited Health and Safety Code sections, I expressly recommend the below named patient take the marijuana consistent with my professional advice. This recommendation is in no way to be interpreted as a prescription as defined under Federal Law. It is only a recommendation that adopts the legal provisions of California Health and Safety Code section 11362.5 and is only intended to be used and applied under California law.
Name of Patient
Date of recommendation: _____________________
Expiration of recommendation: ________________
Physician’s name and address
DEFENDANT’S REQUESTED SPECIAL JURY INSTRUCTION NO. 1
Combines and Modifies CALJIC 12.06, 12.24.1, & 12.30.1
DEFENSE OF COMPASSIONATE USE
Health and Safety Code §11357 relating to the unlawful possession of marijuana (which is a lesser included offense of possession of marijuana for sale in violation of Health and Safety Code§11359), and Health and Safety Code §11358 relating to the cultivation of marijuana, do not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of any physician. A person is not guilty when the acts are authorized by law for compassionate use.
Accordingly, it is a defense to a charge of possession or cultivation of marijuana if you determine that the defendant was possessing or cultivating that marijuana as a primary caregiver for personal medical purposes of others who had the written or oral recommendation or approval of any physician.
To establish this defense, the burden is on the defendant to raise a reasonable doubt as to her guilt of possessing or cultivating marijuana for reasons other than personal medical purposes.
The term “primary caregiver”, as used in this instruction, means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person. It is a question for you to decide whether the defendant was a primary caregiver.
The term “recommendation” and the term “approval” have no technical meaning. It is a question for you to decide, based on the facts in this case, whether the defendant (or patient for whom the defendant is a primary caregiver) had either a recommendation or approval of any physician.
If, from all of the evidence, you have a reasonable doubt that the defendant was engaged in the unlawful possession or cultivation of marijuana and was instead possessing or cultivating that marijuana as a primary caregiver for personal medical purposes upon the written or oral recommendation or approval of any physician, you must find the defendant not guilty of the charged crime.
** Credit to Paul Klopper for development of this instruction.