Imagine If There Were A Law…

Imagine if there were a law that made it illegal to possess Vicodin.

Well, actually, as it turns out, there is a law that makes it illegal to possess Vicodin…

…without a prescription.1

Now imagine that the police stopped you for some reason — or maybe they heard from a friend, who heard from a friend that you had some Vicodin — so they search your car, or your house, or you, and they find Vicodin.

But you have a prescription. So you whip out your prescription, show it to the cops, and they let you go.

Actually, it would never happen exactly like that, because most likely your Vicodin would be in a prescription bottle, with the prescription written right on it. In any event, if the only thing the police found was a prescription bottle with some Vicodin in it, they would be extremely unlikely to arrest you for that reason alone.2

But what if the police decided, for some reason, that they didn’t believe “having a prescription” was a valid defense to your having Vicodin. Suppose the police decided that everyone they found with Vicodin must be breaking the law. So everyone they stop with Vicodin shows them a prescription, or they see it written right on the bottle, but they go ahead and take all those people to jail anyway, charge them with felony possession of a controlled substance, and force them to defend themselves in court, possibly wiping out their savings in the process — and possibly going to prison anyway.

That would never happen, though, right? Well, at least we know it doesn’t happen to most people possessing Vicodin with a prescription. 

Now imagine that we were talking about medical marijuana instead of Vicodin.

Medical Marijuana

Medical Marijuana

Being arrested in spite of having a physician recommendation3 is the situation for huge numbers of Californians who, despite the passage of the Compassionate Use Act and the Medical Marijuana Program Act, are discovered by the police to be in possession of marijuana, or who are found to be growing marijuana, or go to a dispensary — or run one — that dispenses marijuana, or are found driving home from a dispensary with marijuana in the car.

There are, of course, some differences between the scenarios where someone possesses Vicodin and those where someone possesses marijuana. I’ll discuss some of them below. But there is one thing which is actually not different at all when it comes to California’s laws: it is illegal to possess Vicodin without a prescription, and it is illegal to possess marijuana without a physician recommendation. Obviously, the reverse of this is also true: when it comes to California’s laws, it is legal to possess Vicodin if you have a prescription, and it is legal to possess marijuana if you have a physician recommendation, or physician approval.4

Now suppose the police stops someone, finds them in possession of Vicodin, and then says, “You don’t look like you need Vicodin to me.” The officer might even put forth very good reasons for his observation. “I saw you playing football just this afternoon. You were running, jumping — in fact, I saw you make a phenomenal catch at the 60-yard line, and run it all the way down, dodging and twisting as you went, to score a touchdown for your team!”

If you have an actual and current prescription for Vicodin, which appears to be perfectly valid, written by a doctor properly-licensed to practice law in the State of California, does that matter?

Of course not. And any police officer who insisted on arresting you anyway, based only on the above scenario, would find his continued employment seriously threatened by his superiors for ignoring prescriptions and arresting people just because they possessed Vicodin.

So why do the police think it’s okay to arrest people who have medical marijuana cards and also possess marijuana?

Simply put, it’s because the police don’t like people having marijuana. Period. End of story. It does not matter that the voters of the State of California, and then the Legislators of the State of California, have decided otherwise. If they want people to have access to medical marijuana, let them try to stop the police themselves.

They better have their own guns.

But wait! Wait! The problem here is that there are a lot of people out there who are illegally possessing marijuana — they’re growing it; they’re selling it; they’re transporting it all over the place, and they’re simply taking advantage of the medical marijuana laws.

And no one ever possesses Vicodin illegally.

Actually, I picked Vicodin as an example because California laws concerning Vicodin are very similar to those relating to medical marijuana. Vicodin “is one of the most commonly prescribed medications to treat moderate to severe pain.” And abuse of Vicodin is a very serious problem. The one big difference is that most ordinary Vicodin users — perhaps none, but I didn’t really research this — are forced to “grow their own” medicine, or risk being arrested for getting it from someone else. Another difference is that the average person possessing Vicodin is not going to be arrested, so long as they show police officers a valid prescription for the Vicodin which they possess.

Imagine if there were a law…

Wait! There is! California’s medical marijuana laws do recognize that you aren’t going to run down to your local Von’s Pharmacy to obtain your medical marijuana. In California,

[Health and Safety Code] 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.5

This is what the voters of the State of California decided upon when they voted in the Compassionate Use Act of 1996.

The purpose of this Act — and this information was also included in the original language of the Act that voters voted on — was:

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. ((Cal. Health & Safety Code § 11362.5(b)(1)(A), emphasis added.))

“Aha!,” the cops always say. “It says, ‘seriously ill Californians.’”

Yes, it does. And who makes that determination? Not the judge.6 Not even juries.

As is evidenced by the entirety of the language of subdivision (b)(1)(A) and the language of subdivision (d) of section 11362.5, the question of whether the medical use of marijuana is appropriate for a patient’s illness is a determination to be made by a physician. A physician’s determination on this medical issue is not to be second-guessed by jurors who might not deem the patient’s condition to be sufficiently “serious.”7

Who, in our society, decides if someone is “seriously ill”? Doctors; not cops.

If a medical marijuana user has a recommendation from a physician, that’s all that is needed to make the determination that the medical marijuana user is legally in possession of, or cultivating, marijuana, unless there is some other reason providing probable cause to believe that something illegal is happening.

In fact, the California Legislature actually came up with a program to specifically help the police to make that determination:

The department shall establish and maintain a voluntary program for the issuance of identification cards to qualified patients who satisfy the requirements of this article and voluntarily apply to the identification card program.8

California Health and Safety Code section 11362.715 spells out what is required for a person to obtain one of these identification cards. Other code sections allow the Health Department to deny a card to someone who should not be allowed to have a card. But the bottom line is that if someone has a card, that validates that the person has a physician recommendation, or approval, and is otherwise permitted to do certain things involving marijuana which the general public cannot do. Law enforcement is required to accept it as valid, unless they have probable cause to doubt it is a real card, or probable cause to believe it is being used fraudulently. 

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.9

“Well,” respond the police. “That does not give medical marijuana users the right to possess, or — worse yet! — grow, marijuana for sale. So there you have it. If the grow is larger than their physician recommendation allows, then there is probable cause to believe that they are engaged in illegal activity, and I’m going to refuse to accept the card.”

Except it’s not, officer. And you can’t.

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 [possession of concentrated cannabis], 11358 [marijuana cultivation], 11359 [possession of marijuana for sale], 11360 [sale/transport of marijuana], 11366 [maintaining a place to sell/use a controlled substance], 11366.5 [managing a location for manufacturing or storing a controlled substance], or 11570 [refusing probation for certain convictions].10

California law also specifically mentions “dispensaries,” and California courts recognize that:

In enacting this limitation, the Legislature seemed to express its understanding that … the MMPA permits retail dispensaries.11

By itself, then, the size of a grow officers may find does not, by itself, provide probable cause to believe that anything illegal is happening. Further investigation is needed. This is something the police never do, because it requires work. Plus, as I said above, they don’t believe anyone should be allowed to have marijuana, and an investigation might reveal an absence of probable cause to believe crimes were being committed. And without probable cause to believe something illegal is happening, qualified patients cannot even be arrested.

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 … 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.12

Imagine…if there were a law…and law enforcement officers actually followed it.

Qualified patients in need of medical marijuana would be allowed — just like users of Vicodin — to obtain and use their medicine without fear of arrest, prosecution, a costly defense, or imprisonment.


Endnotes:

  1. Cal. Health & Safety Code § 11350. []
  2. Mind you, when the police want to arrest somebody, they’re going to find some way to do it. But they would be extremely unlikely to arrest someone for possessing a bottle of Vicodin which appeared to have the proper information showing that it was a valid prescription. They’ll find some other reason. []
  3. Physicians don’t prescribe medical marijuana for numerous reasons which I won’t cover in this blog post. However, for purposes of California law, a physician recommendation for, or approval of, medical marijuana, and a physician prescription for Vicodin, have the same legal status. []
  4. The law appears to consider the possibility of a patient asking the doctor “what do you think about my trying marijuana,” and the physician saying, “it couldn’t hurt.” An “approval” and a “recommendation” are not necessarily the same; “approval” may be something less formal. People v. Trippett, 56 Cal. App. 4th 1532, 1548, 66 Cal. Rptr. 2d 559 (1997); see also People v. Rigo, 69 Cal. App. 4th 409, 412-413, 81 Cal. Rptr. 2d 624 (1999. []
  5. Cal. Health & Safety Code § 11362.5(d), emphasis added. []
  6. See People v. Jackson, 210 Cal. App. 4th 525, 148 Cal. Rptr. 3d 375 (2012). []
  7. People v. Spark, 121 Cal. App. 4th 259, 268, 16 Cal. Rptr. 3d 840 (2004). []
  8. Cal. Health & Safety Code § 11362.71. The details of how the identification card program works are spelled out in the rest of that code section. []
  9. Cal. Health & Safety Code § 11362.78, emphasis added. I can tell you that officers routinely refuse to accept such cards. I have one such case, involving a cancer patient who lost over 100 lbs — nearly half his body weight — after cancer surgery, until his doctor convinced him to try medical marijuana, which stabilized him. The officers to whom he showed his card literally tossed them aside, saying, “those are useless.” []
  10. Cal. Health & Safety Code § 11362.775. []
  11. People v. Jackson, supra, 210 Cal. App. 4th at 537. []
  12. Cal. Health & Safety Code § 11362.71, emphasis added. The ellipsis replaces a portion of the code relating to a limitation on the amount of marijuana. That section of the code was determined to be unconstitutional, and the courts have stricken it. People v. Kelly, 47 Cal. 4th 1008, 1049, 103 Cal. Rptr. 3d 733 (2010). []

About Rick Horowitz

Rick Horowitz is a criminal defense attorney with an extreme dislike of the criminal "justice" system which routinely ignores the Constitution, the Law, and the lives it ruins.

In addition to this blog, Rick also writes at Fresno Criminal Defense.

Comments

  1. The people of California, and their legislature, have both spoken, and the cops ignore their will. What is the solution? Personal liability for the cops? Defunding police departments that break these laws? Nut-punches?