Summary by Seymour Weisberg
COMPASSIONATE USE ACT (CUA)
On November 4, 1996, California voters passed Proposition 215, codified as Health and Safety Code section 11362.5.
Subdivision (a) states that it may be cited as the Compassionate Use Act.
Subdivision (b) is a preamble in three parts declaring the purposes of the Act:
(A) 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.
(B) 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.
(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.
Subdivision (b)(2) states: “Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.”
Subdivision (c) provides protection to physicians by stating: “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.”
Subdivision (d) is the heart of the Act. It states: “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.”
Subdivision (e) defines “primary caregiver,” 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.”
In People v. Mentch (2008) 45 Cal 4th 274, the California Supreme Court held that the defendant whose caregiving consisted principally of supplying marijuana and instructing on its use and sometimes taking patients to medical appointments could not qualify as a “primary caregiver.”
SB 420
On October 12, 2003, the governor signed into law, effective January 1, 2004, SB 420, sponsored by Sen. Vasconcellos and called the Medical Marijuana Program, adding an entire Article 2.5 (from Health and Safety Code § 11362.7 to § 11362.83) to Chapter 6, Division 10 of the Code.
SB 420 impacts, modifies and clarifies the CUA in several significant areas of misunderstanding and ambiguity in order to promote uniformity within the state and to address issues not included in the CUA, “pursuant to the powers reserved to the State of California and its people under the Tenth Amendment to the United States Constitution.”
MEDICAL MARIJUANA PROGRAM
Section 11362.7, for the purposes of implementing the “voluntary program for the issuance of identification cards” (§ 11362.71(a)(1)), sets forth definitions of “attending physician,” “primary caregiver,” “qualified patient,” “serious medical condition,” and “written documentation.”
EXPANDED EXEMPTIONS
In addition to limited immunity from prosecution for violations of Section 11357 (possession) and 11358 (cultivation), Health and Safety Code Section 11362.765(a) provides to specified individuals no criminal liability under Sections 11359 (possession for sale), 11360 (transportation or sale), 11366 (maintaining places for drug sales or use), 11366.5 (persons facilitating unlawful use of such places) or 11570 (declaring such places to be nuisances).
Subdivision (b) of Section 11362.765 designates such individuals as:
(1) A qualified patient or a person with an identification card who transports or processes marijuana for his or her own personal medical use.
(2) A designated primary caregiver who transports, processes, administers, delivers, or gives away marijuana for medical purposes, in amounts not exceeding those established in subdivision (a) of Section 11362.77, only to the qualified patient of the primary caregiver, or to the person with an identification card who has designated the individual as a primary caregiver.
(3) Any individual who provides assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, in administering medical marijuana to the qualified patient or person or acquiring the skills necessary to cultivate or administer marijuana for medical purposes to the qualified patient or person.
Subdivision (c) provides: “A primary caregiver who receives
compensation for actual expenses, including reasonable compensation incurred for services provided to an eligible qualified patient or person with an identification card to enable that person to use marijuana under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, shall not, on the sole basis of that fact, be subject to prosecution or punishment under Section 11359 or 11360.”
Section 11362.7 sets forth definitions of the terms used and subdivision (f) states: “‘Qualified patient’ means a person who is entitled to the protections of Section 11362.5, but who does not have an identification card issued pursuant to this article.”
LIMITS
Section 11362.77(a) sets a default limit of eight ounces of dried marijuana. “In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient.” However, subdivision (b) states that if a qualified patient or primary caregiver has a doctor’s recommendation that this quantity does not meet the patient’s medical needs, he or she “may possess an amount consistent with the patient’s needs.” Subdivision (c) provides that counties and cities may enact guidelines that exceed the state limits. Subdivision (d) states: “Only the dried mature processed flowers of the female cannabis plant or the plant conversion shall be considered when determining allowable quantities of marijuana under this section.” Subdivision (e) states that the Attorney General may recommend to the Legislature modifications to the possession or cultivation limits (by 12/01/05) “based on currently available scientific research.” Finally, subdivision (f) states that a qualified patient or a person holding a valid identification card or the designated primary caregiver of such person may possess amounts consistent with this article.
In People v. Kelly (2010) 47 Cal.4th 1008, the California Supreme Court ruled that the legislature could not amend Proposition 215 by setting limits, but it could prevent the arrest of holders of state issued medical marijuana identification cards who did not exceed the limits.
COOPERATIVES AND COLLECTIVE CULTIVATION
Section 11362.775 states: “Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.”
ID CARDS
Section 11362.71 establishes a voluntary program for the issuance of identification cards by the State Department of Health Services, administered by county health departments, to qualified patients, which can be verified by law enforcement through a 24 hour, toll-free telephone number pending development of an internet based system. The section mandates that protocols be developed to implement the system. Subdivision (e) provides: “No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article.” Subdivision (f) provides: “It shall not be necessary for a person to obtain an identification card in order to claim the protections of Section 11362.”
Section 11362.78 states: “A state or local law enforcement agency or officer shall not refuse to accept an identification card issued by the department unless the state or local law enforcement agency or officer has reasonable cause to believe that the information contained in the card is false or fraudulent, or the card is being used fraudulently.”
PUBLIC SMOKING, EMPLOYMENT, JAIL AND INSURANCE RESTRICTIONS
Section 11362.785 states that no employer, jail or penal institution need accommodate medical marijuana use. However, subdivision (b) states that a prisoner may apply for an identification card and subdivision (c) states that the jail or penal institution may permit the use of medical marijuana. Subdivision (d) states that the article does not require the government or a private insurer or health plan to reimburse for the medical use of marijuana.
Section 11362.79 limits the places in which medical marijuana may be smoked.
PRETRIAL RELEASE, PROBATION AND PAROLE
Section 11362.795 allows for medical use while on bail, probation or parole. It provides:
“(a)(1) Any criminal defendant who is eligible to use marijuana pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail.
(3) The court’s decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court.
(4) During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana.
(5) The court’s consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.
(b)(1) Any person who is to be released on parole from a jail, state prison, school, road camp, or other state or local institution of confinement and who is eligible to use medical marijuana pursuant to Section 11362.5 may request that he or she be allowed to use medical marijuana during the period he or she is released on parole. A parolee’s written conditions of parole shall reflect whether or not a request for a modification of the conditions of his or her parole to use medical marijuana was made, and whether the request was granted or denied.
(2) During the period of the parole, where a physician recommends that the parolee use medical marijuana, the parolee may request a modification of the conditions of the parole to authorize the use of medical marijuana.
(6) Any parolee whose request to use medical marijuana while on parole was denied may pursue an administrative appeal of the decision. Any decision on the appeal shall be in writing and shall reflect the reasons for the decision.
(7) The administrative consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.
CAREGIVER IMMUNITY
Section 11362.8 adds immunity to licensees other than physicians. It provides: “No professional licensing board may impose a civil penalty or take other disciplinary action against a licensee based solely on the fact that the licensee has performed acts that are necessary or appropriate to carry out the licensee’s role as a designated primary caregiver to a person who is a qualified patient or who possesses a lawful identification card issued pursuant to Section 11362.72. However, this section shall not apply to acts performed by a physician relating to the discussion or recommendation of the medical use of marijuana to a patient. These discussions or recommendations, or both, shall be governed by Section 11362.5”
NEW OFFENSES
Section 11362.81 adds misdemeanor criminal penalties to those who obtain a physician’s recommendation or identification card by misrepresentation or fraud; steal, forge or tamper with a card; or who breach the confidentiality requirements of the article.
PROXIMITY TO SCHOOLS
In 2010, the legislature added section 11362.768 to the Health and Safety Code. It provides that: “No medical marijuana cooperative, collective, dispensary, operator, establishment, or provider who possesses, cultivates, or distributes medical marijuana pursuant to this article shall be located within a 600-foot radius of a school.” This also applies to individuals, but only to those “authorized by law to possess, cultivate, or distribute medical marijuana and that has a storefront or mobile retail outlet which ordinarily requires a local business license.” Local governments may “further restrict the location or establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider.” Furthermore, this law does not preempt previously passed local laws.
The 600-foot radius and “school” are defined.
