One friend’s experience explores weed legalities.
Thursday, January 20, 2011
It’s not clear who may use marijuana legally and under what conditions. This became clear to a friend of mine who thought he was legally cultivating some marijuana in a shed. He thought he was doing everything right, and so did a policeman who investigated the first time. But during a second visit by another policeman, the situation became muddied. So my friend asked me, a journalist, to look into the situation.
I made some phone calls and talked with some very bright people in law enforcement – police and district attorneys. None of the “Reefer Madness” mentality of the bygone era; instead, thoughtful people who appreciate nuance and exhibit common sense. In the matter of my friend, it turned out there had been several tips on the police tip phone line on different occasions and the police, dutifully, checked them out.
Here’s what I learned about the general situation.
A doctor’s certificate is not a get-out-of-jail free card. It is simply and only a recommendation that using marijuana is a legitimate treatment for the ailment(s) for that individual patient. A doctor’s recommendation does not entitle the patient to possess or consume marijuana or immunize him from arrest, although it can be used as an affirmative defense if the case goes to court. Most law enforcement in the counties served by forward-thinking officials, as in the case in Monterey, will not pursue people with doctor’s recommendations, as long as other laws aren’t being broken.
The card one might obtain that identifies its holder as a customer of a particular dispensary is only that – an ID card. Like what they give you at Blockbuster. It entitles that person to nothing and provides no protection from law enforcement.
A person with a doctor’s recommendation can acquire from a county office a state ID card that entitles the holder to possess and use marijuana. This card prevents law enforcement from arresting the person and/or seizing their marijuana. The fellow in the District Attorney’s office put it plainly when he said, if a person has a state card for personal use, “We are not in the business of going behind doctors’ recommendations.” These state IDs need to be renewed (one presumes the person is still suffering and in need) every year, and the renewal requires a new recommendation from a doctor. Not every county is set up to issue the state ID cards.
Regulations and enforcement vary by county. For example, there are dispensaries in Santa Cruz but not Monterey.
IT WILL TAKE MORE BALLOT MEASURES AND COURT DECISIONS TO CLARIFY THESE ISSUES.
The law signed by former Gov. Arnold Schwarzenegger that went into effect with the new year makes possession of an ounce or less of marijuana for personal use by someone without a state ID card to be an infraction rather than a misdemeanor. This was the legislature correcting some previous legislation. The rewrite means that a person charged with an infraction for possession can’t demand a lawyer or a jury trial and it won’t go down on his record.
There is considerable confusion about several aspects of marijuana cultivation, possession and distribution. The California Supreme Court ruled just last January in the case of People vs. Patrick Kelley that a person who has a right to possess marijuana can have as much as they want, though it can only be for personal use. But it’s not clear if someone who is allowed to possess marijuana is allowed to share it or sell it, even if the recipient has their own state ID card.
Nor does it seem to be decided that all the marijuana dispensaries that have sprung up hither and yon are actually legal enterprises. Maybe they have a right to grow it but not to sell it; we don’t know that. There is also the issue that the dispensaries are getting their product from illegal sources. Some establishments claim that if they aren’t making a profit then they are legal, but that is not by any means established.
It will take more ballot measures and court decisions to clarify these issues. In the meantime, the police and the district attorney are running a three-legged race through a legal thicket. The good news is that far fewer resources are being expended dealing with small marijuana situations than was the case in the past, that past being just a decade ago.
It’s a continuing challenge, however, in Monterey County, with perhaps two dozen different law enforcement entities, from towns to the CHP, the sheriff’s office to the campus police at CSUMB. But the majority of decisions seem to be thoughtfully considered.
The federal government doesn’t view marijuana possession and use as benignly, but currently they don’t seem to be pressing the point.
More grist for more courts. If you are considering cannabis consumption, and you’re not sure of the legalities, find out first.
TONY SETON is a veteran broadcast journalist, author, and resident of Monterey County.