Due to the nature of my occupation I have the fortunate experience of conversing with many individuals and groups that are involved to various degrees in the medical marijuana community. I regularly discuss the state of the law with activists, patients, concerned citizens, politicians, doctors, court experts, prosecutors, police officers, and of course collective directors. I have observed that most of these folks are quite up to date with the rapidly changing body of laws. However, there are two main areas that I can firmly attest are not catching on quite as well as others. It is mainly due to the vague and dynamic nature of the codified law and cases that interpret them. The two main areas are Quantity limits and Collective Cultivation.
Collectives are authorized under California Health and Safety Code Section 11362.775. The section reads as follows:
“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 in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.”
It is a popular misconception amongst many people in the MMJ community that collectives can just purchase or otherwise acquire medicine from outside “vendors”. This system does make pragmatic sense for groups that do not have the knowledge or space needed to cultivate their own medicine. Many collectives have limited resources to focus on a sophisticated grow-room. For any one who has ever set up a medical grow will attest that the cost of equipment alone can easily exceed $10,000. Without the proper equipment and space the medical grow will not produce the needed quantity or even approach a minimum quality standard. Unfortunately, the law has not yet worked out this deficiency. The current state of the law is clear in that collective/cooperative redistribution of medical marijuana does in fact require that the group cultivate their own medicine. Collective cultivation is the cornerstone of any collective defense in a criminal prosecution. In addition to many other factors, it is imperative that a collective director be willing and able to show and document the existence of a medical grow when faced with criminal prosecution. I suggest, however unpopular this idea may be, that every group engaging in collective activities maintain a transparent and fully accessible grow.
The second area is quantity limitations. I would have to say that most folks still spread as gospel the standards as codified in California Health and Safety code section 11362.77.
California Health and Safety Code Section 11362.77 provides the following language:
“(a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or twelve immature marijuana plants per qualified patient.”
I refer to this as the “6-8-12 gets you a Felony” standard. California Courts have reviewed, with considerable scrutiny, the Medical Marijuana Program, (MMP). Since its adoption in 2003 the MMP has been challenged in many ways but quit rigorously on this quantity limitation issue. I will not provide a full rendering of the history of this litigation as it would require an article of its own. The seminal case is People v. Kelly, 47 Cal.4th 1008. Many people are aware that the court determined that the quantity limitations in 11362.77 are not valid. Many in the MMJ community heralded this decision as a carte blanche to possess and cultivate quantities exceeding these limits. The problem is that the court did not validate unlimited quantities for qualified patients. In fact the Court set out no bright line rule for quantities. Therefore, it could be that a patient could exceed the limits of the medical marijuana laws with only 2 ounces or 3 mature plants. Of course it is also true that a patient may be in compliance with 10 ounces or 13 plants. The only thing we immediately knew for sure was that neither law enforcement, Judges or defense lawyers could use 11362.77 as a rule.
The current state of quantity limitations has been reduced to the highly speculative pre-MMP standard of “reasonableness“. It is unfortunately placed upon patients and collectives to justify the quantity of marijuana possessed or grown. With this in mind, I highly suggest that all patients and collectives document and constantly scrutinize the amounts they possess and cultivate. Based upon the capricious nature of juries, it is difficult to specify with any certainty what will be a reasonable quantity. That is why patients and collectives should have written records of how a particular patient ingests their medicine. It should be noted as to whether they smoke, use edibles, topical applications and what their regular usage amounts are. These records should also be reviewed by a medical marijuana expert to determine if the amounts are reasonable in their view. Finally, these records should be checked regularly to ensure that they are keep up to date.
All members of the medical marijuana community should take note of both these items and make the necessary changes to maintain compliance with State law. Happy New Year!