Summary of Marijuana Laws

PROPOSITION 215

DO I STILL NEED TO GET A MEDICAL MARIJUANA CARD?


The passage of Prop. 64 to legalize adult possession and cultivation of recreational marijuana in no way impinges on the rights of medical marijuana patients under Prop. 215.

Patients with a state ID card are exempt from sales tax in dispensaries under the new law.

PROPOSITION 215, the California Compassionate Use Act, was enacted by the voters and took effect on Nov. 6, 1996 as California Health & Safety Code 11362.5. The law makes it legal for patients and their designated primary caregivers to possess and cultivate marijuana for their personal medical use given the recommendation or approval of a California-licensed physician.

SB420, a legislative statute, went into effect on January 1, 2004 as California H&SC 11362.7-.83. This law broadens Prop. 215 to transportation and other offenses in certain circumstances; allows patients to form medical cultivation "collectives" or "cooperatives"; and establishes a voluntary state ID card system run through county health departments.

In 2015, the California Legislature passed the Medical Marijuana Regulation and Safety Act (MMRSA or MCRSA), establishing permitting for marijuana cultivation and dispensaries, etc. at the state level (with local approval). The law went into effect on January 1, 2016; however, the state has said it will need until January 2018 to set up the necessary agencies, information systems, and regulations to actually begin issuing licenses. In the interim, local governments may choose to adopt new ordinances to permit or license local businesses in preparation for state licensing. Facilities currently operating in accordance with state and local laws may continue to do so until such time as their license applications are approved or denied. In the meantime, prospective applicants are strongly advised to apply to the state Board of Equalization for a Resale Permit, and to prepare for seeking approval from their local governments. See the state Bureau of Medical Marijuana Regulation website.

WHAT OFFENSES ARE COVERED?


Prop. 215 explicitly covers marijuana possession and cultivation (H&SC 11357 and 11358) for personal medical use. Hashish and concentrated cannabis, including edibles, (HSC 11357a) are also included. Transportation (HSC 11360) has also been allowed by the courts. Within the context of a bona fide collective or caregiver relationship, SB 420 provides protection against charges for possession for sale (11359); transportation, sale, giving away, furnishing, etc. (11360); providing or leasing a place for distribution of a controlled substance (11366.5, 11570).

WHAT ILLNESSES ARE COVERED?



Prop. 215 lists cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. Physicians have recommended marijuana for hundreds of indications, including such common complaints as insomnia, PMS, post-traumatic stress, depression, and substance abuse.

WHO QUALIFIES AS A PHYSICIAN?



Prop. 215 applies to physicians, osteopaths and surgeons who are licensed to practice in California. It does not apply to chiropractors, herbal therapists, etc. See a list of medical cannabis specialists. Prop. 215 requires physicians to state that they "approve" or "recommend" marijuana. Physicians are protected from federal prosecution for recommending marijuana by the Conant U.S. court decision.

WHO MAY CULTIVATE UNDER PROP. 215?


Patients with a physician's recommendation and their primary caregivers, defined as, "The individual designated by the person exempted under this act who has consistently assumed responsibility for the housing, health, or safety of that person." According to a state supreme court decision, People v Mentch (2008), caregivers must supply some other service to patients than just providing marijuana.

As an alternative, SB 420 allows patients to grow together in non-profit "collectives" or cooperatives. Collectives may scale the SB 420 limits to the number of members, but large gardens are always suspect to law enforcement. In particular, grows over 100 plants risk five-year mandatory minimum sentences under federal law. Many local governments have moved to ban or sharply restrict the right of patients to grow collectively. Policy varies greatly around the state (see local limits below.).

HOW MUCH CAN I POSSESS OR GROW?


Under Prop. 215, patients are entitled to whatever amount of marijuana is necessary for their personal medical use. However, patients can be arrested if they exceed reasonable amounts and they can be cited or fined for exceeding local laws. Under MMRSA, which took effect Jan. 1, 2016, qualified patients can cultivate up to 100 square feet for personal medical use, and primary caregivers with five or fewer patients are allowed up to 500 square feet. Exemption under this section does not prevent a local government from further restricting or banning the cultivation of medical cannabis.


WHAT ABOUT EMPLOYMENT DRUG TESTING?


Prop. 64 specifically allows employers to continue to discriminate against marijuana users. In California, even medical marijuana patients can be fired for failing an employment drug test.


PROPOSITION 64


How can I get a license to grow or sell marijuana now that Prop. 64 has passed?

Those won't be issued until 2018, until a bureau can be set up to issue regulations and applications. See general information about starting marijuana businesses.

We expect a reconciliation bill with the existing medical marijuana licensing bureau. You can contact them and get on their mailing list here. You should employ an attorney and also start working on gaining local support, because locals will have to license retail shops and cultivators, or at least not ban them.

When and where can I grow my six plants, and how can I get clones or seeds to grow marijuana now that it's legal under Prop. 64?

You can grow your six plants per parcel of land at your residence now, subject to "reasonable regulations" by local governments, which may also ban outdoor cultivation. A great many locals have already banned outdoor marijuana cultivation, and others are moving to ban or adopt regulations in the wake of Prop. 64. We expect litigation over what a "reasonable regulation" is.

A legal mechanism for buying seeds or clones for recreational users won't be in place until licensing for commercial marijuana businesses happens in 2018. In the meantime, it's legal for people to give away under an ounce of marijuana, so a medical marijuana patient could give you some seeds or clones. Some give aways might be arranged, as have happened in DC. In no case are seeds or clones legal to cross state lines.


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