Medical Marijuana and Marijuana Drug Crime Attorney, Santa Rosa
Marijuana, or medical marijuana, is the most frequently used drug in the United States. In fact, more than 40 percent of adults in this country have tried it. The legal ramifications of Marijuana and Medical Marijuana use are complicated. If you have questions about or have recently been arrested on Marijuana-related charges, you need the help of an experienced Santa Rosa Marijuana Crimes Lawyer.
Cannabis laws in California were established to accommodate individuals suffering from painful, terminal and chronic illnesses. The laws, as they are written, do not require qualified users to be registered with the California Department of Public Health (CDPH) or to carry documentation that identifies them as medical marijuana users. Registration with the CDPH is strictly voluntary. However, taking this step and obtaining an identification card for permissible cannabis use can often help eliminate legal confrontations with law enforcement officers.
Qualifying Medical Conditions
People certified to grow or use medical marijuana in California must have one of these qualifying conditions:
- Chronic pain
- Persistent muscle spasms (including those associated with multiple sclerosis)
- Seizures associated with but not limited to epilepsy
- Severe nausea
- Other chronic or persistent medical symptoms that either:
- (a) Substantially limits the ability of the person to conduct one or more major life activities. (as defined by the Americans with Disability Act of 1990
- (b) If not alleviated may cause serious harm to the patient’s safety, physical or mental health.
INFORMATION ABOUT SANTA ROSA COMPASSIONATE USE LAWS
Proposition 215, also known as the Compassionate Use Act, was approved by initiative with a 55% majority and took effect on Nov. 6, 1996. The law makes it legal for patients and their designated primary caregivers (a primary caregiver is someone who has consistently assumed responsibility for the housing, health, or safety of a patient) to possess and cultivate marijuana for their personal medical use given the recommendation or approval of a California licensed physician.
The amount of marijuana possessed and cultivated must be reasonably related to the patient’s current medical needs. The California Compassionate Use Act also permits patients and caregivers to transport marijuana for medical needs.
Medical professionals use the term “compassionate use” to refer to the treatment of a seriously ill patient using a new, unapproved drug when no other treatments are available. Drugs that are being scientifically tested but have not yet been approved by the US Food and Drug Administration (FDA) are called investigational drugs. The most well-known drug that falls into this category is medical marijuana.
The law states clearly that there is a right for all Californians to access medical marijuana for their medical needs. Legal access to medical marijuana requires a physician to make a determination that a person could benefit and improve their medical condition with the use of medical marijuana. The law lists specific medical conditions for which a marijuana prescription can be obtained, as outlined above, however, this is not a comprehensive list. If a licensed doctor feels that marijuana may help alleviate or improve a particular medical condition, then you are legally permitted to obtain medical marijuana under this recommendation.
Compassionate drug use is legal, but it is tightly restricted to people who meet certain conditions. The FDA first approved investigational drugs to be used in this way for critically ill patients in 1987. There are 2 ways a drug company commonly gives access to their unapproved drug to a person who is not in a clinical trial, through expanded access programs (EAP) or single patient access.
Expanded access refers to the use of an investigational drug outside of a clinical trial by patients with serious or life-threatening conditions who do not meet the enrollment criteria for the clinical trial in progress. Expanded access programs can be leveraged in a wide range of therapeutic areas including, but not limited to HIV/AIDS and other infectious diseases, cancer, rare diseases, and cardiovascular diseases.
Patients who don’t qualify for either clinical trials or an expanded access program may be able to get the unapproved new drug by applying for single patient access. The Doctor will contact the drug company and see if the drug company will supply the drug for this certain patient. If the company agrees, the patient’s doctor works with the drug company to ask the FDA to approve the drug for use by this one patient.
Unfortunately, certain parts of the Compassionate Use Act are complex and confusing. The Compassionate Use Law provides that those statutes which prohibit possession and cultivation not apply to patients and caregivers “who possess or cultivate marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” Despite its passage in 1996, a large number of Californians are still being charged for the use and possession of marijuana for medicinal purposes. The area of medical marijuana law is new and developing.
Senate Bill 420
SB 420, or the Medical Marijuana Protection Act, was signed into law by Governor Gray Davis and established an identification card system for medical marijuana patients. SB 420 drastically expanded the protections of the Compassionate Use Act. This includes protecting qualified patients who collectively and cooperatively cultivate marijuana for medical purposes from criminal sanctions for possession for sale, etc. Part of the legislative intent of SB 420 is to “facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers.”
The law surrounding medical marijuana, its cultivation, possession, and use, is constantly evolving and changing. Currently, the law allows patients, caregivers, and collectives to grow marijuana. However, there is much controversy to the law and what is unclear is how much is okay. Unfortunately, law enforcement will make the call on the amount and charge people with felonies when they are within the guidelines.
California’s medical marijuana laws also convey that a physician need only provide an oral recommendation to their patients to qualify them for protection under State Bill 420. The simplicity of this type of “prescription” has been responsible for a great deal of cannabis related infractions.
The confusion about California medical marijuana law and who is allowed to have it with them or grow marijuana plants in their home is very controversial. In fact, many lawsuits have been filed against the proposition because of the controversy. The sale and possession of marijuana in California is still illegal and those arrested are faced with felonies including potential state prison sentences. Under federal law, medical necessity is not recognized as a criminal defense, and therefore distributing, transporting or sale of marijuana for any reason is a federal crime.
Santa Rosa marijuana cultivation or processing of any amount of marijuana in California is punishable by up to 3 years in state prison and a fine of up to $10,000, to plant, cultivate, harvest, dry or process any marijuana. One plant is sufficient for criminal liability.
However, based on Proposition 215 – The Compassionate Use Act of 1996 and Senate Bill 420 – The Medical Marijuana Program Act, there is an exception to the cultivation prohibition for patients or patients’ caregivers who possess or cultivate for personal use by the patient, upon approval of a physician. Outside of this, possession of even a small number of plants alone can be charged and prosecuted as possession with intent to sell. If you are facing criminal charges, contact our Santa Rosa drug crimes lawyers today.
Possession Laws in California
Qualified patients and their primary caregivers may possess no more than eight ounces of dried marijuana and/or six mature (or 12 immature) marijuana plants. However, SB 420 allows some patients to possess larger amounts of marijuana when recommended by a physician. SB 420 also grants implied legal protection to the state’s medicinal marijuana dispensaries.
Senate Bill 1449 and Marijuana Possession
On September 30, 2010, Gov. Arnold Schwarzenegger signed into law CA State Senate Bill 1449, effectively reducing the charge of possession of up to one ounce of cannabis from a misdemeanor to an infraction, similar to a traffic violation, with a $100 fine and no mandatory court appearance or criminal record. The law became effective January 1, 2011.
Medical marijuana dispensaries are growing throughout the state, making the drug more readily available for those that need it. As a result, that availability has resulted in unwarranted arrests. From allegations of fake or outdated prescriptions to traffic stops leading to an accusation of possession, sale or cultivation, valid caregivers and card-carrying patients face serious consequences.
At the Law Office of Paul Lozada, we offer bold and aggressive representation focused on protecting your rights against charges involving possession or possession with intent to sell, distribution, and transportation. We have handled hundreds of marijuana possession cases, involving sales and cultivation cases.
MARIJUANA POSSESSION CHARGES AND PENALTIES
Minor possession charges of marijuana can be infractions or they can be punishable with jail time and fines as well as suspension of your driver’s license. The severity of the punishment depends on a number of factors including, but not limited to:
- Prior convictions
- Circumstances surrounding the crime
- Media attention
- Personal biases of law enforcement officials, judges, and juries
- The effectiveness of the defendant’s legal representation
If you are accused of possessing or cultivating marijuana, obtain experienced legal help. Law enforcement could try to charge you with a more serious offense punishable with jail time without the help of a skilled Santa Rosa marijuana possession attorney.
SALE OF MARIJUANA LEGAL INFORMATION
Under the enacted Marijuana/Medical Marijuana laws, patients and their “primary caregivers” are protected from criminal prosecution for personal use possession and cultivation of marijuana, but not for distribution or sale to others. State law was expanded in 2004 by a new law, Senate Bill 420. Among other things, SB 420 authorized patient “cooperatives” or “collectives” to grow, distribute and/or sell medical marijuana on a non-profit basis to their members. It also allows duly designated primary caregivers who consistently attend to patients’ needs and collective members to charge for their labor and services in providing marijuana. This controversial bill leaves the sale of marijuana in a legal gray area; made legal by some states for medicinal purposes, but remaining illegal in the eyes of the Federal Government.
However, according to Health and Safety Code 11359, possession of marijuana with the intent to sell any amount of it, is punishable as a felony. The sale of marijuana means the exchange of marijuana for cash, goods, favors or other benefits. Selling marijuana is different than purely giving away marijuana. Giving away less than 28.5 grams of marijuana is punishable as a misdemeanor and the penalty is a fine of up to $100. This, of course, does not apply to those cases that fall into Senate Bill 420.
Intent to Sell Punishments
If you are arrested for possession with intent to sell, the punishment can include probation, county jail time or state prison, depending on the facts of the case. Sales can also mean giving marijuana away or exchanging it for something else. Success in defending possession with intent to sell cases hinges upon persuading a court that the client only possessed the marijuana for personal use and to minimize the importance of other items found during the arrest, such as:
- Possession of large amounts of cash, and particularly smaller bills
- Possession of drug paraphernalia (rolling papers, pipes, or bongs) which may indicate personal use rather than intent to sell
- Possession of multiple baggies either with or without marijuana in them
- Possession of scales
- Possession of smoking devices
- Possession of multiple beepers/pagers/cellular phones/pda’s
In addition to the aforementioned indicators, the police officer or sheriff’s deputy that arrested you is generally allowed to testify in court as an expert in the area. He or she will generally say that in their “opinion” and “based on their training and experience” you had the intent to sell the marijuana you were found to be in possession of.
Sale and transportation for sale of marijuana is a felony if the amount involved is 28.5 grams or greater, and is punishable by 2, 3 or 4 years in state prison. The sentence may be increased if the sale or transportation involves a minor.
Much like “giving it away”, the sale and transportation for sale of marijuana is a misdemeanor if the amount involved is less than 28.5 grams, and is punishable by a maximum fine of $100.
If you’ve been arrested in Santa Rosa or any part of Sonoma County for the sale of marijuana, have a Santa Rosa marijuana lawyer on your side who will aggressively fight the charges. Our attorneys are experienced advocates for those accused of marijuana crimes. Call our office today at (707) 636-3272 to set up a free legal consultation to discuss your charges.
MARIJUANA DUI INFORMATION
It is unlawful to drive while under the influence of marijuana (or alcohol or any other drug) by Vehicle Code 23152. “Under the influence” is not specifically defined in the statute, but is interpreted to imply some degree of impairment. Therefore the mere fact of having taken a toke of marijuana does not necessarily mean one is driving under the influence. When faced with a Marijuana DUI charge in Sonoma County, it is important to keep this in mind and work with an experienced Santa Rosa Marijuana Crimes Lawyer who has deep knowledge of the specific laws and protocol regarding both DUI and Marijuana charges in California.
For evidence of impairment, officers may administer a field sobriety test. Arrestees may also be required to submit to their choice of a urine or blood test under Vehicle code 23612. Since marijuana is detectable for much longer periods in urine than in blood (several days vs. several hours), a positive urine test constitutes much weaker proof of recent use and impairment than a positive blood test. If you haven’t smoked marijuana recently and are not under the influence, you are better off to choose a blood test, since you will probably pass it. However, if you are a frequent smoker or have smoked recently, you are better off to choose a urine test; even though you can expect to test positive, the question will at least remain open as to whether you were actually “under the influence” at the time of arrest.
Aside from the blood test, the evidence presented by the prosecution for a DUI marijuana case will also include the comments from the arresting officer. These comments include:
- Physical appearance
- Performance with field sobriety tests
- Erratic driving
- Incriminating statements
There are many complications in proving the crime of driving under the influence of marijuana. Mostly due to a lack of scientific research, the prosecution for these crimes is still a new development. Science is still unable to compare the amount of drugs to the amount of impairment caused by them and identify the individual tolerance to particular drugs.
Police have been implementing DRE programs. DRE stands for “Drug Recognition Examination.” The process involves a multi step approach of field evaluation. The object of the DRE is to detect and identify specific drug impairment of the driver arrested for a DUI. Marijuana and other drugs are purported to be detectable using the process. However, the examination is not as accurate as the police claim and the DRE is often not performed in the correct manner. The DRE evaluation takes about 30 to 40 minutes to perform correctly. Although some Courts have ruled the procedure admissible in a criminal prosecution, many attorneys have argued the contrary.
In California, first time DUI offense prosecuted under 23152(a) is a misdemeanor punishable by a maximum of 6 months in county jail, a fine between $390 and $1,000, mandatory alcohol program, suspended or restricted license and a 3-year probation. If the prosecution involves a person under 21, a conviction will result in 1-year license suspension. If the impaired driving results in bodily injury or death, even the first time offense can be prosecuted as a felony punishable by imprisonment in state prison.
If you or your caregiver has recently been arrested on charges of illegal possession, use, cultivation of cannabis, or marijuana DUI despite a recommendation from a qualified physician, contact the Law Office of Paul Lozada today at (707) 636-3272 for a free consultation with one of our experienced Santa Rosa defense lawyers. The Law Office of Paul Lozada provides answers to clients in search of information pertaining to medical marijuana and marijuana laws in Santa Rosa and throughout Sonoma County.