.Baby Steps for Weed

The painfully slow evolution of California medical marijuana law.

Last week, the California Democratic Party took the historic step of endorsing statewide regulations for medical cannabis. Such regulations, however, are not going to happen this year, experts say. But this summer, a separate bill, SB 439, could represent yet another baby step toward regulation, thereby exemplifying the Golden State’s painful, decades-long evolution of medical cannabis law.

Authored by State Senate President Pro Tem Darrell Steinberg, SB 439 builds on past law and court rulings by explicitly legalizing cash sales of medical cannabis at dispensaries. The bill also would clear up a persistent legal gray area that allows police in places like Los Angeles and San Diego to imprison citizens for the same activities — dispensary sales — that are fully permitted in Oakland, Berkeley, Richmond, and other cities that regulate dispensaries.

SB 439 would also further clarify the rules of the road for California dispensaries that had been spelled out previously by then-Attorney General Jerry Brown in 2008. But Brown’s “Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use” are just that — guidelines — and do not have the force of law. Dispensaries don’t always to follow them, and those that do can still be imprisoned by anti-marijuana cops and prosecutors.

SB 439 passed the Assembly Public Safety committee on June 27, and awaits the Assembly Health committee when lawmakers return from their summer recess next week. We think now would be a great time to look back at how California got here:

California medical marijuana law wasn’t fully formed at birth. It started out being vague because proponents and opponents couldn’t agree on very much at the polls, or in the legislature. So, over the past seventeen years, judges and politicians have shaped medical marijuana law, one case and one bill at a time. After consulting with several lawyers, we present this timeline of highlights in the evolution of California’s medical cannabis rules.

The Vague Beginning. 1996 — Proposition 215: The Compassionate Use Act empowered doctors to recommend cannabis for any condition for which it provides relief; granted qualified patients a medical defense in court against charges of marijuana possession, cultivation, and transportation; and permitted patients and caregivers to possess, cultivate, and transport any amount of cannabis reasonably related to the patient’s current medical needs.

Trial Rights. 2002 — California Supreme Court, People v. Mower: clarified that patients can introduce a medical marijuana defense before trial through presentation of minimal amounts of evidence.

Doctor Protection. 2002 — Ninth Circuit Court of Appeal, Conant v. Walters: affirmed doctors’ First Amendment right to recommend medical cannabis to their patients without fear of criminal prosecution.

Collectives and Cooperatives. 2003 — SB 420: The Medical Marijuana Program Act expanded legal defenses for patients and caregivers to include collectives and cooperatives of patients and caregivers who are collectively growing and distributing the plant. The MMPA also created a statewide medical marijuana identification card program that immunizes cardholders from arrest.

Dispensaries Okay. 2005 — California appellate court, People v. Urziceanu: validated that collectives can operate commercial storefronts called “dispensaries,” sell medical marijuana to patients, and have legal defenses in court.

Feds Still the Boss. 2005 — US Supreme Court, Gonzales v. Raich: clarified that the federal government has authority under the US Constitution’s Commerce Clause to enforce federal laws criminalizing marijuana, even where medical cannabis is legal under state law.

Toothless Guidelines. 2008 — California Attorney General’s Guidelines: recommended that collectives and cooperatives incorporate, pay taxes, and operate as nonprofits and set personal possession limits at eight ounces and twelve immature plants, unless a doctors says a patient needs more.

No Right to Employment. 2008 — California Supreme Court, Ross v. Raging Wire: clarified that employers can fire medical marijuana patients solely for lawfully using the drug off-hours as recommended by their physician.

Anti-MMJ Counties Can’t Opt Out. 2008 — California appellate court, County of San Diego v. NORML: clarified that state employees are controlled by California law, not federal law; and counties must implement the state medical marijuana identification card program, effectively immunizing patients from arrest under state law.

Lawful Patients Can Sue. 2009 – California appellate court, County of Butte v. Superior Court of Butte County: clarified that patients can sue cities and counties for unlawfully eradicating and seizing their medical cannabis.

No Limits with Doctor’s Note. 2010 — California Supreme Court, People v. Kelly: clarified that patients can possess, transport, and cultivate any amount of medical cannabis as long as its reasonably related to their current medical needs regardless of MMPA guidelines.

Schools Buffer. 2010 — Assembly Bill 2650: Specifically acknowledged dispensaries and regulated their location by mandating that they cannot be within six hundred feet of a school.

Dispensary Bans. 2011 — California appellate court, County of Los Angeles v Hill: affirmed that cities can regulate dispensaries through zoning, but not necessarily ban dispensaries.

Cash Sales Legal. 2012 — California appellate court, People v. Colvin: affirmed that cash payments at a dispensary are a legal way to participate in a collective or cooperative, and that patients needn’t grow pot themselves.

Cities Can Ban Dispensaries. 2013 — California Supreme Court, City of Riverside v. Inland Empire Patients Health and Wellness Center: ruled that California cities and counties can ban dispensaries using zoning and civil nuisance laws.


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