Melissa Bobrow Criminal Law Blog on Lawyers.com

Law Offices of Melissa Bobrow (619) 800-5434

San Diego, California Federal and State Criminal Defense

CALIFORNIA MEDICAL MARIJUANA – SORRY
IT ISN’T LEGAL

Hello, my name is Melissa Bobrow, and I am attorney in
California.  I am here to give you, the:
patient, caregiver, coop/collective owner, person interested in medical
marijuana – some insight into what is happening here in California.  After conducting my own research, seeing what
other people have blogged/posted on their website, reading countless articles,
and attending my first meeting with Americans for Safe Access, one thing is
abundantly clear to me – NOTHING IS CLEAR. 
There is so much confusion amongst dispensary owners, patients,
caregivers, and even attorneys.  What is
and what isn’t legal? What is compliance? What does the federal government have
to do with this?  I decided to write this
article to help clear up some of the basic concepts of this confusing and grey
area of the law.

What Does The Law Say?

Good question.  First
we have to start with a quick Constitutional Law explanation – I promise to
keep this quick. 

We have several tiers of laws in our country, blah blah
blah.  Essentially when there is federal
law on a subject, the states cannot enact a law that directly conflicts with
the federal law.  Okay, great so why does
this matter?

Glad to see you’re paying attention – THERE IS FEDERAL LAW on
this subject.  It is called the
Controlled Substances Act, and it does not like or condone medical marijuana.  The Controlled Substances Act classifies
drugs into different categories or “schedules”. 
Depending on where a drug is classified will determine how it can be
used, prescribed, purchased, etc. 

Marijuana is currently classified as a “Schedule I” drug,
which means it is NEVER okay to use or prescribe it under ANY circumstances.  We can debate whether this classification is
legitimate or not at another time – this is an explanation of what the law is;
not an endorsement or criticism of what the law should be.

Though many medical marijuana supporters and activists cling
to Proposition 215 (Prop 215) and Senate Bill 420 (SB 420) as proof that
medicinal marijuana is legal in California, this is not the case. Huh?  I thought
it was legal. How else can these collectives and dispensaries exist? What about
the medical marijuana cards?  Don’t they
offer me protection?  What do you mean it
isn’t legal???

Well folks, here’s the deal; it isn’t legal – plain and
simple.  Well not plain or simple, but
since that’s the source of all this confusion, let’s clarify.

Example: Federal law says marijuana is illegal under all
circumstances – state law says it is legal under a certain set of circumstances,
i.e., you can use it if you’re over 21.  Guess
what happens to a state law that is in direct conflict with a federal
law???  Well, if the state law is
challenged, which the County of San Diego was kind enough to do, the state law
would be struck down and the federal law would prevail.  In other words, if Prop 215 and SB 420
actually legalized marijuana, even for medicinal purposes, the federal
government argues that it would conflict with the Controlled Substances Act,
and that would be the end of our discussion. 

I’m Confused, Then What Do Prop 215
and SB 420 Do?

Prop 215 decriminalized
medical marijuana for patients and caregivers and doctors that recommend the
use of it.  What does that mean?  Well these pieces of legislation did not legalize marijuana, that’s for
sure.  Instead it provided a level of
protection - people that fit under the criteria of patient, caregiver or doctor
that recommends marijuana, will not be prosecuted for doing so.  PROP 215 is a loophole in the law!  It’s a brilliant loophole, but you must keep
in mind – it is a loophole.   

It also created an affirmative defense.  Woa – legal term, what is an affirmative
defense? Well an affirmative defense is when you say: “Yes, I did do that, but
it is okay because….” So here, it would go something like this: “Yes I did
possess “x” amount of marijuana, but it is okay because I have a medical
condition and my doctor recommended I use marijuana to alleviate my symptoms.”

SB 420 was written to clean up some of the mess left over
from Prop 215 and provide some guidelines of what Californians are allowed to
do.  It provided the Medical Marijuana
cards, told the Attorney General s/he has to come up with some regulations on
this subject, and allowed collectives and cooperatives to exist so that they
are able to provide medical marijuana. 
Again, SB 420 did not legalize
medical marijuana.  It simply provided
the groundwork for a system that allows patients and caregivers access to
medical marijuana and gave cooperatives and collectives some guidelines for how
they should incorporate themselves.

Where Are We Now?

Let’s sum up:

1)   
There
is federal law that makes ALL marijuana illegal for ANY purpose in ANY state;

2)   
There
is a California statute that says – well it’s still illegal, but we are not
going to prosecute this group of people when they use it under a doctor’s
recommendation;

3)   
This
loophole gives Californians state
protection, if they are in compliance with the state and local laws;

4)   
Even
if you are in full compliance with state law, you may still be arrested for
possessing and/or cultivating marijuana (unfortunately local authorities are
having a hard time with these laws too), but you do have an affirmative defense
in state court and you must hire an attorney experienced in federal court.

Well Where Does That Leave You?

One thing I hear a lot is “The cops can’t arrest me, I have a
card”.  Guess what – just because they
should not does not mean they will not.  You
may prevail in court, but who wants to go to court? Comply with your state and
local laws, never possess or cultivate more than is medically necessary, and
always have your doctor’s recommendation AND medical marijuana ID card with you. 

Remember it is not legal, it has been decriminalized.  So be smart, be safe, and be well.