In 1996, California voters enacted the Compassionate Use Act (CUA), which made California the first state to legalize marijuana for medical use. Subsequently, in 2004, the California’s medical marijuana law was amended with SB 420, which added additional protections to the Compassionate Use Act. As a result of these companion policies, California has the most comprehensive medical marijuana law in the country. The CUA and SB 420 have been codified as Health and Safety Code 11362.5 – 11362.83 and provides the following protections and limitations.
Under California’s medical marijuana law, patients and primary caregivers are permitted to legally use, possess, transport, deliver, or cultivate marijuana for medical purposes. Additionally, SB 420 specifically protects collectives or cooperatives and allows primary caregivers to receive financial compensation for their services.
Another unique aspect of California’s medical marijuana law is that it specifies that a criminal defendant or someone on probation or parole can ask permission from the courts to be allowed their rights under CUA.
SB 420 has a provision that allows counties and cities to retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state’s personal use amounts.
The identification system established pursuant to this Act is wholly voluntary, and a patient is entitled to all of the protections of Section 11362.5 of the Health and Safety Code without possessing a state-issued identification card.
California’s medical marijuana law further prohibits any physician from being punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.
II. Becoming A Patient
A. How to become a medical marijuana patient in the state of California
Under California’s medical marijuana law, the state Department of Public Health (the Department) is required to set up a voluntary medical cannabis ID system, however this is not yet in place. Although medical cannabis patients are not required by law to have such an ID, once an ID card becomes available, it may be helpful during law enforcement encounters.
Under Cal. H&S 11362.715:
1. A person who seeks an identification card shall pay the fee, as provided in Section 11362.755, and provide all of the following to the county health department or the county’s designee on a form developed and provided by the Department:
1. The name of the person, and proof of his or her residency within the county;
2. Written documentation by the attending physician in the person’ s medical records stating that the person has been diagnosed with a serious medical condition and that the medical use of marijuana is helpful or appropriate;
3. The name, office address, office telephone number, and California medical license number of the person’s attending physician;
4. The name and the duties of the primary caregiver, if one exists; and
5. A government-issued photo identification card of the person and of the designated primary caregiver, if any. If the applicant is a person under 18 years of age, a certified copy of a birth certificate shall be deemed sufficient proof of identity;
2. If the person applying for an identification card lacks the capacity to make medical decisions, the application may be made by the person’s legal representative, including, but not limited to, any of the following:
1. A conservator with authority to make medical decisions;
2. An attorney-in-fact under a durable power of attorney for health care or surrogate decision maker authorized under another advanced health care directive; and
3. Any other individual authorized by statutory or decisional law to make medical decisions for the person;
3. The legal representative described above may also designate in the application an individual, including himself or herself, to serve as a primary caregiver for the person, provided that the individual meets the definition of a primary caregiver;
4. The person or legal representative submitting the written information and documentation described above shall retain a copy thereof.
Pursuant to Cal. H & S 11362.72:
1. Within 30 days of receipt of an application for an identification card, a county health department or the county’s designee shall do all of the following:
1. For purposes of processing the application, verify that the information contained in the application is accurate. If the person is less than 18 years of age, the county health department or its designee shall also contact the parent with legal authority to make medical decisions, legal guardian, or other person or entity with legal authority to make medical decisions, to verify the information;
2. Verify with the Medical Board of California or the Osteopathic Medical Board of California that the attending physician has a license in good standing to practice medicine or osteopathy in the state;
3. Contact the attending physician by facsimile, telephone, or mail to confirm that the medical records submitted by the patient are a true and correct copy of those contained in the physician’s office records. When contacted by a county health department or the county’ s designee, the attending physician shall confirm or deny that the contents of the medical records are accurate;
4. Take a photograph or otherwise obtain an electronically transmissible image of the applicant and of the designated primary caregiver, if any; and
5. Approve or deny the application. If an applicant who meets the requirements of Section 11362.715 can establish that an identification card is needed on an emergency basis, the county or its designee shall issue a temporary identification card that shall be valid for 30 days from the date of issuance. The county, or its designee, may extend the temporary identification card for no more than 30 days at a time, so long as the applicant continues to meet the requirements of this paragraph.
2. If the Department or the county’s designee approves the application, it shall, within 24 hours, or by the end of the next working day of approving the application, electronically transmit the following information to the Department:
1. The unique user identification number of the applicant;
2. The date of expiration of the identification card; and
3. The name and telephone number of the county health department or the county’s designee that has approved the application.
3. The county health department or the county’s designee shall issue an identification card to the applicant and to his or her designated primary caregiver, if any, within five working days of approving the application.
4. In any case involving an incomplete application, the applicant shall assume responsibility for rectifying the deficiency. The county shall have 14 days from the receipt of information from the applicant pursuant to this subdivision to approve or deny the application.
Under Cal. H & S 11362.735:
1. An identification card issued by the county health department shall be serially numbered and shall contain all of the following:
1. A unique user identification number of the cardholder;
2. The date of expiration of the identification card;
3. The name and telephone number of the county health department or the county’s designee that has approved the application;
4. A 24-hour, toll-free telephone number, to be maintained by the department, that will enable state and local law enforcement officers to have immediate access to information necessary to verify the validity of the card; and
5. Photo identification of the cardholder.
2. A separate identification card shall be issued to the person’s designated primary caregiver, if any, and shall include a photo identification of the caregiver.
According to Cal. H & S 11362.74:
1. The county health department or the county’s designee may deny an application only for any of the following reasons:
1. The applicant did not provide the information required by Section 11362.715, and upon notice of the deficiency pursuant to subdivision (d) of Section 11362.72, did not provide the information within 30 days;
2. The county health department or the county’s designee determines that the information provided was false; and
3. The applicant does not meet the criteria set forth in this article.
2. Any person whose application has been denied for the reason(s) above may not reapply for six months from the date of denial unless otherwise authorized by the county health department or the county’s designee or by a court of competent jurisdiction;
3. Any person whose application has been denied for the reason(s) above may appeal that decision to the Department. The county health department or the county’s designee shall make available a telephone number or address to which the denied applicant can direct an appeal.
B. Registration Fee
Currently, there is no registration fee because there is not yet a registration process with the state of California. However, there are both public and private entities that issue ID cards. It usually takes at least 24 hours for them to verify your doctor’s recommendation and produce the card.
Two examples of ID card programs are in San Francisco and Oakland. Their contact info and hours of operation follow:
San Francisco Department of Public Health (only for SF residents)
101 Grove Street, room 105
Hours: Monday – Friday 9 – 4
Oakland Cannabis Buyers Cooperative
1733 Broadway (between 17th & 19th)
Hours M-F 10 – 4:30, Saturday 10 – 2:30
C. Eligible medical conditions: “Serious Medical Condition”
“Serious medical condition” means all of the following medical conditions:
1. Acquired immune deficiency syndrome (AIDS);
6. Chronic pain;
9. Persistent muscle spasms, including, but not limited to, spasms associated with multiple sclerosis;
10. Seizures, including, but not limited to, seizures associated with epilepsy;
11. Severe nausea;
12. Any other chronic or persistent medical symptom that either:
1. Substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act of 1990 (Public Law 101-336); and
2. If not alleviated, may cause serious harm to the patient’s safety or physical or mental health.
D. Written Certification Must be Provided to Prove Eligibility
Under the California medical marijuana law, “Written documentation” means accurate reproductions of those portions of a patient’s medical records that have been created by the attending physician, that contain the information described above (information required by paragraph (2) of subdivision (a) of Section 11362.715). The patient may submit to a county health department or the county’s designee as part of an application for an identification card. However, California’s statewide voluntary ID card program has not yet been implemented.
Americans for Safe access recommends that any patient desiring to receive a recommendation for the medical use of marijuana be forthright with their doctor. There is nothing illegal or immoral with using medical cannabis or discussing medical cannabis use with a doctor. Doctors can not be punished for recommending medical cannabis.
If a patient is considering discussing medical marijuana use with their doctor, that patient should be prepared to tell his or her doctor specifically what condition or symptoms he or she treats with cannabis. This means that the patient should honestly describe the amount of cannabis they use, how often, and by what delivery method.
The patient should then proceed to ask for a written recommendation for the medical use of marijuana. Although an oral one is acceptable under California state law, it is difficult to verify, so it is better to get the recommendation in writing.
E. Finding a Doctor
Under Cal. H & S 11362.7(a), “Attending physician” means an individual who possesses a license in good standing to practice medicine or osteopathy issued by the Medical Board of California and who has taken responsibility for an aspect of the medical care, treatment, diagnosis, counseling, or referral of a patient and who has conducted a medical examination of that patient before recording in the patient’s medical record the physician’s assessment of whether the patient has a serious medical condition and whether the medical use of marijuana is appropriate or helpful.
Although the state of California will not help patients find a doctor who is willing to recommend marijuana for medical use, there are several physicians who are considered to be medical cannabis specialists.
There are a number of physician clinics in California which are available for medical cannabis consultations. Patients should already have a documented medical record of diagnosis and treatment or a physician referral. You can find a listing of some of these physicians at http://www.canorml.org.
However, patients should be aware that:
1. your medical records should be brought with you to the appointment;
2. it generally costs more than $200 to see a medical cannabis specialist; and
3. paying the money does not guarantee that you will get a recommendation.
F. Renewal Applications
Once they become available, an identification card will be valid for a period of one year. Upon annual renewal of an identification card, the county health department or its designee will then verify all new information and may also verify any other information that has not changed. The county health department or the county’s designee then transmits its determination of approval or denial.
Patients should be aware of the expiration on their recommendation or physician statement in order to renew the document in a timely fashion.
G. Age Limits
If the person is less than 18 years of age, the county health department or its designee shall also contact the parent with legal authority to make medical decisions, legal guardian, or other person or entity with legal authority to make medical decisions, to verify the information.
H. Personal Records
Americans for Safe Access strongly urges all patients to keep copies of all paperwork they have related to their status as a medical marijuana patient as proof of legal status. This is meant to protect patients from possible future encounters with law enforcement agents.
III. Limitations and Protections under the Initiative
A. Possession and Growing Limitations
California state medical marijuana law sets the floor rather than the ceiling for statewide possession and growing limitations. Therefore, under California law, cities and counties may set guidelines that exceed the state allowed quantities.
Pursuant to Cal. H & S 11362.77(a), a qualified patient or primary caregiver may possess no more than:
1. Eight ounces of dried marijuana per qualified patient; and
2. No more than six mature or 12 immature marijuana plants per qualified patient.
Because personal use guidelines may be different for various cities and counties, ASA recommends that patients and caregivers check with their local city council and county board to find out if it has local guidelines. For a listing of known guidelines for localities across California, see www.safeaccessnow.net. However, since this list may not be regularly updated, it is always important to check with your local city council and county board.
In addition, if a qualified patient or primary caregiver has a doctor’s recommendation that this quantity does not meet the qualified patient’ s medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient’s needs.
Only the dried mature processed flowers of female cannabis plants or the plant conversion shall be considered when determining allowable quantities of marijuana under this section.
B. Consumption of Medical Marijuana
Under Cal. H & S 11362.79, qualified patients are not permitted to smoke medical marijuana under any of the following circumstances:
1. In any place where smoking is prohibited by law;
2. In or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence;
3. On a school bus;
4. While in a motor vehicle that is being operated; and
5. While operating a boat.
California’s medical marijuana law also sets guidelines for medical marijuana patients in the criminal justice system. Under Cal. H & S 11362.795. (a) (1) “Any criminal defendant who is eligible to use marijuana pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail.” Further, if a physician recommends that the probationer or defendant use medical marijuana during the period of probation or release on bail, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana.
Also under California’s medical marijuana law, any person who is to be released on parole from a jail, state prison, school, road camp, or other state or local institution of confinement and who is eligible to use medical marijuana pursuant to Section 11362.5 (CUA) may request that he or she be allowed to use medical marijuana during the period he or she is released under supervision. A parolee’s written conditions of parole shall reflect whether or not a request for a modification of the conditions of his or her parole to use medical marijuana was made, and whether the request was granted or denied. During the period of the parole, where a physician recommends that the parolee use medical marijuana, the parolee may request a modification of the conditions of the parole to authorize the use of medical marijuana.
Any parolee whose request to use medical marijuana while on parole is denied may pursue an administrative appeal of the decision. Any decision on the appeal shall be in writing and shall reflect the reasons for the decision.
C. Paraphernalia associated with medical use
Although the law does not specifically address the legality of paraphernalia associated with medical marijuana use, the law does provide that a qualified patient or designated primary caregiver may transport, posses, administer, deliver, or gives away marijuana for medical purposes. As a result, ASA defines paraphernalia associated with medical use protected as it relates to the administration of medical marijuana.
D. Access to Medical Marijuana
Medical marijuana patients cannot go to a pharmacy to fill a prescription for medical marijuana. Pharmacies can only dispense medications that are “prescribed.” Unfortunately, medical marijuana is classified by the Federal government as a Schedule I drug which means that it cannot be prescribed by any health care professional.
In addition, the state of California will not provide medical marijuana, seeds, clones, or advice on how to obtain medical marijuana to any patient. However, California is unique in that it is the only State that currently allows for a system to distribute medical marijuana. The CUA encourages “federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.” Unfortunately, no such well-defined plan currently exists. Until such a plan does exist, patients may use caregivers (as spelled out by SB 420) or collectives and cooperatives to obtain their medicine. SB 420 explicitly allows for collectives and cooperatives and nothing in state law prohibits collectives and cooperatives from dispensing as part of their operation.
E. Growing/Dispensing Collectives and Cooperatives
Although California’s medical marijuana law specifically prohibits any individual or group to cultivate or distribute medical marijuana for profit, California does allow a primary caregiver to receive compensation. This includes compensation for actual expenses, including reasonable compensation incurred for services provided to an eligible qualified patient which enables that patient to use medical marijuana.
In addition, California’s medical marijuana law allows compensation for; “Any individual who provides assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, in administering medical marijuana to the qualified patient or person or acquiring the skills necessary to cultivate or administer marijuana for medical purposes to the qualified patient or person.”
These two concepts then culminate under Cal. H & S 11362.775, which permits: “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 to collectively or cooperatively cultivate marijuana for medical purposes.. As a result of the above provisions, the following models have developed and grown since the passage of the CUA and SB 420:
1. The Cooperative Model seeks to combine the efforts of patients and caregivers, as the two work together to educate the public and grow cannabis. Each individual involved is expected to give what he or she can to the endeavor. In return, the cooperative offers its members safe access to medical cannabis, often at no cost. While caregivers can be part of a cooperative, none need participate for a cooperative to be viable. A cooperative can be made up of patients only. It should be noted that cooperatives are entities defined by state law and that law must be consulted and followed before a cooperative is formed;
2. The Collective Model is considered very similar to the Cooperative Model, with the significant difference being that state law does not define cooperatives. It is recommended by ASA that parties interested in providing medicine to groups of patients follow a Cooperative Model to avoid potential legal complications; and
3. The Collective or Cooperative Dispensing Model is perhaps the most commonly used model across the state. Due to the conflict between state and federal law, specifically with regard to “distribution,” ASA encourages caution when implementing such a model. From a patient’s standpoint, this model is the most simple, basic mechanism through which they can receive medical cannabis. Each dispensary maintains its own membership of legally qualified patients, and those members are allowed access to safe and affordable cannabis medicines. A Collective or Cooperative Dispensary with patient services is a more comprehensive model. With this model, the dispensary does not simply provide its members the opportunity to secure safe, medical-grade cannabis, but also offers other services to meet the needs of the patient’s general well being. In this way, the dispensary acts as its patient’s primary caregiver, as well as a provider of medicine. At these facilities, health care providers may offer an array of services; attorneys and legal workers may provide legal information, educating patients and caregivers on their rights; and other workshops and services may be offered such as peer counseling, hospice-style care, classes on various topics like cultivation, as well as other special events benefiting the patients.
For a list of medical cannabis dispensaries in their area, patients should check http://www.canorml.org. Americans for Safe access strongly recommends that any patients who are interested in forming a dispensing collective or cooperative consult an attorney before doing so.
“Primary caregiver” means the individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person, and may include any of the following:
1. In any case in which a qualified patient or person with an identification card receives medical care or supportive services, or both, from a clinic, health care facility, residential care facility for persons with chronic life-threatening illness, a residential care facility for the elderly, a hospice, or a home health agency, the owner or operator, of no more than three employees who are designated by the owner or operator, of the clinic, facility, hospice, or home health agency, if designated as a primary caregiver by that qualified patient or person with an identification card;
2. An individual who has been designated as a primary caregiver by more than one qualified patient, if every qualified patient, who has designated that individual as a primary caregiver resides in the same city or county as the primary caregiver;
3. An individual who has been designated as a primary caregiver by a qualified patient who resides in a city or county other than that of the primary caregiver, may only be the designated primary caregiver for one qualified patient at any given time.
4. A patient’s primary caregiver must be at least 18 years of age, unless the primary caregiver is the parent of a minor child who is a qualified patient or a person with an identification card or the primary caregiver is a person otherwise entitled to make medical decisions under state law pursuant to Sections 6922, 7002, 7050, or 7120 of the Family Code.
California’s medical marijuana law does not require the accommodation of any medical use of marijuana on the premises of any jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained.
However, pursuant to SB 420, a person shall not be prohibited or prevented from:
1. Obtaining and submitting the written information and documentation necessary to apply for an identification card on the basis that the person is incarcerated in a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained; and
2. If a qualified patient, using marijuana for medical purposes under circumstances that will not endanger the health or safety of other prisoners or the security of the facility.
Under Cal. H & S 11362.785(a), the accommodation of any medical use of marijuana is not required on the property or premises of any place of employment or during the hours of employment.
However, the California medical marijuana law does not prohibit the employment of any individual who engages in the medical use of marijuana on the job. Additionally, the issue of employment-related drug testing is not discussed.
California Residents: California currently has no reciprocity agreements with other states to honor California’s medical marijuana law. This includes even those states that currently have medical marijuana laws of their own.
However, in Montana, medical marijuana patients from other states who are valid medical marijuana patients under that state’s law are protected under Section 4(8) of the Montana Medical Marijuana Act [Sec. 50-46-201(8), MCA]. A registry identification card or its equivalent issued by another state government to permit the medical use of marijuana by a qualifying patient or to permit a person to assist with a qualifying patient’s medical use of marijuana has the same force and effect as a registry identification card issued by the Department of Public Health and Human Services in Montana. Therefore, medical marijuana patients from California should be protected in Montana under Montana state law. See the Montana Patients Guide for details on the protections and limitations that Montana state law affords medical marijuana patients.
Additionally, in Rhode Island, The Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act (MMA) protects patients and primary caregivers from outside Rhode Island who have a state issued medical marijuana ID card, or its equivalent. The MMA states, “A registry identification card, or its equivalent, issued under the laws of another state, U.S. territory, or the District of Columbia to permit the medical use of marijuana by a qualifying patient, or to permit a person to assist with a qualifying patient’s medical use of marijuana, shall have the same force and effect as a registry identification card issued by the department.” Therefore, medical marijuana patients from the other medical marijuana states that have state issued cards should be protected in the state of Rhode Island. See the Rhode Island Patients Guide for more information.
In states with no medical marijuana program, marijuana use, regardless of a doctor’s recommendation, is illegal. You may be arrested and charged with civil or criminal offenses in those states.
J. Law Enforcement
No qualified patient or designated primary caregiver in possession of a valid physician’s recommendation shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in their recommendation or ID card is false or falsified, the documentation has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article. As discussed above it is not necessary for a person to obtain an identification card in order to claim the protections of Section 11362.5.
While SB 420 helped to clarify the CUA and was meant to enforce protection of patients and caregivers from arrest and prosecution, it said nothing about medicine seizure, and unfortunately led way to a split decision in People v. Mower (2003). The Mower decision on its face looks good in that it reinforced patients’ apparent protection from arrest and prosecution. However, the California Supreme Court ruled in Mower that with “probable cause” police officers could search, seize and arrest patients even after being provided valid documentation. ASA is attempting to clarify “probable cause” through proactive litigation against the state.
Additionally, under Cal. H & S 11362.78; “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.”
A person found to have fraudulently obtained access to medical marijuana will be subject to the following penalties:
1. For the first offense, imprisonment in the county jail for no more than six months or a fine not to exceed one thousand dollars ($1,000), or both; and
2. For a second or subsequent offense, imprisonment in the county jail for no more than one year, or a fine not to exceed one thousand dollars ($1,000), or both.
In addition to the penalties described above, any person may be precluded from attempting to obtain, or obtaining or using, an identification card for a period of up to six months at the discretion of the court.
California’s current confidentiality protocols are as follows. First, the identification cards (described above) that will be issued by the Department shall contain only a random serial number as the identifying information for the patient. The patient’s name, address, and other sensitive information will not be available to law enforcement or others simply based on the viewing the card. Additionally, the Department will establish and maintain a 24-hour, toll-free telephone number that will enable state and local law enforcement officers to have immediate access to information necessary to verify the validity of an identification card issued by the department, until a cost-effective Internet Web-based system can be developed for this purpose.
The Department will also create protocols to confirm the accuracy of information contained in an application and to protect the confidentiality of program records.
California’s medical marijuana law does not require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana.
However, upon satisfactory proof of participation and eligibility in the Medi-Cal program, a Medi-Cal beneficiary shall receive a 50 percent reduction in the registration fees established pursuant to this section.
Source : www.safeaccessnow.org