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Don Ricketts: What are the limits on medical marijuana?

It’s The Law

Posted: February 11, 2010 9:29 p.m.
Updated: February 12, 2010 4:55 a.m.
 
In 1996, California voters passed the Compassionate Use Act, which decriminalized the cultivation, possession and use of “medical marijuana” by adults who held a recommendation for use from a medical doctor — a “prescription,” so to speak.

Given the act’s liberal definition of medical need, just about any adult can get a prescription and the result is, depending on your point of view, either the opening of Pandora’s Box or the long-awaited “greening” of America. Though still unlawful under federal law, marijuana is for all intents and purposes legal in California.  

But are there limits to how much marijuana a patient can possess (and use)?

The Compassionate Use Act left many details to the Legislature, the counties and the cities to decide, including the question of how much marijuana a “patient” could grow and possess.

The Legislature and governor answered that question by a law which, among other things, allowed a qualified patient to grow six mature and 12 immature marijuana plants, and possess eight ounces of dried marijuana at one time.

Putting aside the still-controversial broader question of whether possession and use should be decriminalized or legalized at all, the limits adopted by the Legislature made sense.

The amount of dried — readily consumable — marijuana that the Legislature established — eight ounces — would last a patient who was a chronic user about two to three months, at the end of which the growing plants would be ready for harvest.

On the other side of the scale, the limit was not so large as to making growing for sale very profitable if one was so tempted.

Those limits were struck down by the California Supreme Court on Jan. 21 as unconstitutional. While some might argue whether the court’s opinion was legally correct, whether the decision was a wise one is another question.  

While striking down the limits, the Supreme Court recognized that the Legislature’s specific limits “were designed to provide an objective, bright line standard in lieu of the subjective, highly individualized reasonable amount standard set forth in the
CUA ... thereby providing law enforcement officers with uniform standards, and providing patients who meet those standards ... with predictability.”

Simply stated, both patients and law enforcement would know what was legal and what was not.

Upholding the original language of the Compassionate Use Act and rejecting the limits, the Supreme Court held that  “qualified patients ... are not subject to any specific limits and do not require a physician’s recommendation in order to exceed any such limits; instead they may possess an amount of medical marijuana reasonably necessary for their ... personal medical needs.”

The practical-minded, law-abiding citizens and law enforcement officials might ask: “Well how much is that?” How much may an individual have at one time without risking arrest by an overzealous law-enforcement officer?

How much does an individual have to possess before a conscientious law-enforcement officer is satisfied that he or she has enough to arrest and convict?

The answer is, as it always is, if the test is “reasonableness” — it depends.  

The net effect of the Supreme Court’s ruling is to unsettle things, not to settle them. It is as if the drunk-driving law outlawed driving after consumption of an unreasonable amount of alcohol, rather than an amount that causes the blood-alcohol level to be elevated beyond a specific amount.

Because it was not detailed, the Compassionate Use Act contemplated implementation by the Legislature, the counties and the cities.  Setting limits was a legitimate act of the Legislature. It did not change the Compassionate Use Act. It enabled or implemented it, and it was not for the Supreme Court, in the guise of interpreting, to set the limits.

The Supreme Court’s opinion is not, as marijuana legalization proponents have argued, a license to possess all the marijuana one wishes. There are still limits, but what they are is now open to argument and they will be the subject of law review articles and lots of lawsuits, where the two sides will argue about whether the amount involved was reasonable or not.

This is good for lawyers; bad for the administration of justice.

Don Ricketts is a Santa Clarita lawyer. He may be reached by e-mail at donricketts@donricketts.com.  His column reflects his own views and not necessarily those of The Signal. “It’s The Law” appears Fridays and rotates between members of the Santa Clarita Valley Bar Association. Nothing contained herein shall be or is intended to be construed as providing legal advice.

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