Overview of Federal Marijuana Rulings Conant v McCaffrey: Freedom of Speech includes a physician's right to approve medical marijuana usage by a patient. HIA v. DEA: Ninth Circuit Court of Appeals held that hempseed food products are not "marihuana" and the DEA cannot restrict them. OCBC Decision: Supreme Court: Sales of medical marijuana are not immune from federal prosecution under "medical necessity" defense. Gonzalez v. Raich: Ninth Circuit ruling held that medical marijuana may be beyond the reach of the Interstate Commerce Clause, Supreme Court held that federal government can still arrest patients and caregivers in States where medical marijuana is legal. Overview of California Marijuana Rulings Berry Decision: Patients can use medical marijuana on probation or parole Bearman Decision: Appellate Court: Judicial review of good cause is required before the California Medical Board can gain access to private physician / patient documents. Bergen Decision (2008) determined that qualified patients making edibles, hash and kief are clearly legal but using butane to make hash oil is chemical extraction that is not covered by the medical use statutes — although the oil product is legal. Click here to view as a PDF (44k). Chakos Decision: "Nowhere in this record do we find any substantial evidence that the arresting officer had any expertise in differentiating citizens who possess marijuana lawfully for their own consumption, as distinct from possessing unlawfully with intent to sell." Click here to view as a PDF (48k). Galambos: Prop 215 CUA caregiver defense not available to one who helped others obtain medicinal marijuana unless strict standard is met. (Case preceeded SB420 (HS11362.775) that allows patients to associate collectively to cultivate and provide cannabis.) (2002) 104 Cal.App.4th 1147, 1152. Jones Decision: Prop 215: A patient can testify about their oral medical approval when the physician is not willing or available. All defense needs to raise is a reasonable doubt of guilt, not preponderance of evidence or any other standard. "Thus, a physician could approve of a patient's suggested use of marijuana without ever recommending its use." Chris Conrad's testimony not discussed. Kha Decision: Appellate Court: Local police must return medical marijuana to patients if found to be lawful under state law, regardless of federal law. Click here to view as a PDF (120k). "Mindful as we are of the general supremacy of federal law, we are unable to discern any justification for the City or its police department to disregard the trial court’s order to return Kha’s marijuana. The order is fully consistent with state law respecting the possession of medical marijuana, and for all the reasons discussed, we do not believe the federal drug laws supersede or preempt Kha’s right to the return of his property. That right has its origins in the CUA and MMP, but it is grounded, at bottom, on fairness principles embodied in the due process clause. Those principles require the return of Kha’s property." Mentch Decision Supreme Court limited use of the "the person exempted under this act who has consistently assumed responsibility for the housing, health or safety of that person." It did not limit the activities of patient / caregiver collectives. (2008) 45 Cal.4th 274, 45 Cal.4th 308b Mower Decision Supreme Court, Prop 215: Supreme Court upholds right to patient's benefit of the doubt and prosecutor's burden of proof, encourages pre-trial disposition of medical marijuana-related charges on limited immunity, not merely an affirmative defense at trial. Testimony of Chris Conrad Peron Decision: Appellate Court: "Proposition 215 does not allow 'unlimited quantities of marijuana to be grown anywhere.' It only allows marijuana to be grown for a patient's personal use. Police Officers can still arrest anyone who grows too much, or tries to sell it." Medical marijuana caregivers have a right to remuneration for services that are consistently provided to a patient. Phomphakdy Decision: Quantities listed in SB 420, HS 11362.77(a) are unconstitutional to the extent that they are taken as limits affecting patients' rights or legal defense. Chris Conrad's testimony, mention 1 . Chris Conrad's testimony, mention 2 . Spark Decision: Juries and judges do not get to "second guess" a doctor's approval, condition need not be determined to be "serious" for a valid approval. Rigo Decision : The CUA defense cannot apply to a physician’s post-arrest ratification of self-medication on marijuana. People v. Rigo (1999) 69 Cal.App.4th 409, 412. Rossi Decision: Appellate Court, SB 420: Retroactive application of the law extends benefits of changes in penalty but not later-enacted crimes or penalties. San Diego v NORML: Federal law does not trump state law, California counties and agencies have to follow State law, not federal. Download as PDF. Tilehkooh Decision: Appellate Court, SB 420: Use of medical marijuana is legal for a qualified patient on probation. Trippet Decision: Appellate Court, Prop 215: Patients not entitled to "unlimited amounts," but transportation and possession are authorized. "The rule should be that the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient's current medical needs. What precisely are the "patient's current medical needs" must, of course, remain a factual question to be determined by the trier of fact." No discussion of Conrad's testimony. Urziceanu Decision: Appellate Court, SB 420: Rights to collectively obtain, cultivate and dispense not protected by HS11362.5 but they are protected by HS 11362.7. Testimony of Chris Conrad Williamson Decision: Appellate Court: Personal (non-commercial) marijuana cultivation can get a deferred entry of judgment and diversion from prison. Windus: Doctor's approval is not an annual requirement and can be good for years; doctor's dosage is advisory and does not restrict patient from having a "reasonable" amount, even if less than what a patient has. Wright Decision: California Supreme Court, SB 420: holds that sponsors of Senate Bill No. 420 (2003-2004 Reg. Sess.) made clear that, although couched in mandatory terms, the amounts set forth in section11362.77, subdivision (a) were intended “to be the threshold, not the ceiling.” California Attorney General's published opinions California Attorney General medical marijuana guidelines. These are not binding law, but give an idea of how prosecutors will consider the circumstances of a medical marijuana patient or garden. AG's Opinion 04-709 regarding SB 420 ID card program AG's Opinion 03-411 regarding Medical Marijuana definition to include hashish and preparations Depublished, non-binding decisions: Appellate thought on cannabis* (Not binding precedent.) * Arbacauskas Decision: Appellate court rejects the refilling of charges against a patient once a judge has dismissed charges. (Not binding precedent.) Chris Conrad testimony, mention 1. Chris Conrad testimony, mention 1. * Kelly Decision: Under review by the state Supreme Court. Prop 215, can only be amended with voter approval.  Voters did not approve the eight-ounce quantity limit and other caps in SB420 section 11362.77(a); hence, section 11362.77 unconstitutionally amends the CUA. (Click here to view as a PDF (144k). Christopher Conrad testimony, mention 1. Christopher Conrad testimony, mention 2. Supreme Court of California, Aug 8, 2008. "The issues to be briefed and argued are limited to the following: (1) does Health & Safety Code section 11362.77 violate the California Constitution by amending the Compassionate Use Act without voter approval?; and (2) were there alternative remedies to invalidating section 11362.77 in its entirety?" * Russell Decision: Medical marijuana cultivation is not probable cause for a general search warrant. (Not binding precedent.) * Mentch Decision: Overturned on review by state Supreme Court (see above). Appellate Court, SB 420: Jury gets to hear and decide arguments regarding defendant's caregiver status and compensation arrangements to determine if reasonable; expansion of immunity "safe harbor" is retroactive. This decision has been taken up by the State Supreme Court. Click here for an update on the case. (Not binding precedent.) Testimony of Chris Conrad * Decisions were published and later depublished or de-certified. This means they do not set binding precedent, but may be referenced as an indicator of Appellate thought. The High Court does not explain its reasoning for depublishing a decision, so any undue influence by law enforcement is impossible to determine. Some jury decisions on medical marijuana cultivation

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