Prop 64 protects medical marijuana patients

Originally Published by Chris Conrad at theleafonline.com

Proposition 64, the marijuana legalization initiative on the November 2016 ballot, does not change the Prop 215 medical marijuana defense.

Proposition 215 was the 1996 voter initiative known as the Compassionate Use Act (CUA) and it merely gives a qualified patient (having a doctor’s recommendation or approval) or their primary caregiver a legal immunity defense from two state laws. The CUA created Health & Safety Code Section 11362.5, and its linchpin subsection (d) says, “Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient.”

Courts have since held that this means any amount reasonably related to the patient’s medical needs (People v Kelly) and includes a defense against transportation charges if the quantity is reasonable to the time frame and circumstances (People v Trippet). Local governments may, however, adopt civil ordinances that ban collectives (Inland Empire Patients v Riverside) and even personal medical cultivation (Maral v Live Oak) but patients still retain the immunity defense in criminal court (Kirby v Fresno).

“Prop 215 only protects personal possession and cultivation,” notes California NORML Director Dale Gieringer, who co-authored Prop 215. “Rightly or wrongly, Prop 215 did nothing to establish a legal distribution system, but explicitly left this up to the state and federal government. California courts have repeatedly upheld the power of California lawmakers to regulate the sale and distribution of medical marijuana.”

[Editor’s note: In an upcoming report, noted medical marijuana attorney William G. Panzer, another Prop 215 co-author, will present a much more in-depth explanation of the legal analysis of how the two initiatives intersect.]

Currently and as revised in Prop 64, H&S  §11357 (a) begins by saying: “Except as authorized by law,” while 11358 states in mid sentence, “except as otherwise provided by law.” So the limits on non-medical use and cultivation in Prop 64 took into account the provision to exempt medical marijuana patients. While Prop 64 does eliminate or reduce some of the penalties for violating the statutes, it doesn’t affect the medical use exception.

Furthermore, Prop 64 protects Prop 215 at least nine times. Five sections reinforce the current laws [§11362.2(b)(2) legalizes home cultivation, §11362.3(f) preserves patient rights related to Prop 215, §11362.45(i) again preserves Prop 215 and related laws and case law, §11362.712(a) protects patients’ cannabis recommendations, §26067(e)(1) exempts medical and non-medical home grows from commercial tax and regulation]. Four sections create new rights [§11362.84 patient custodial rights, §26054.2(a) licensing priority for existing collectives and dispensaries, §34011(g) patients exempt from state sales tax and §34012(j) patient gardens exempt from state production tax.

California Prop 64 section 11362.45 makes its strongest case when it reiterates, “Nothing in section 11362.1 shall be construed or interpreted to amend, repeal, affect, restrict, or preempt: (i) Laws pertaining to the Compassionate Use Act of 1996.” That includes the SB 420 safe harbor from 2003 and the Medical Cannabis Regulation and Safety Act as recently adopted by the state legislature. You can take that one to the bank.