Court removes state limit on medical marijuana possession

By Peter Hecht


The California Supreme Court ruled Thursday that the state cannot impose legal limits on the amount of pot that medical marijuana users can grow or possess.

In a ruling certain to exacerbate debate over the governance of medical marijuana in California, the court threw out legislation that limited medical pot users to 8 ounces of dried marijuana and six mature or 12 immature marijuana plants.

The court ruled that the Legislature violated the state constitution when it passed Senate Bill 420 in 2003. The judges found that the plant limits set by the legislation improperly amended the Compassionate Use Act voters passed in 1996 legalizing marijuana for medical use in California.

That ballot measure said that medical pot users and their caregivers can possess any amount of marijuana “reasonably related to the patient’s current medical needs.”

“These individuals are not subject to any specific limits and do not require a physician’s recommendation in order to exceed any such limits,” Chief Justice Ron George wrote in the unanimous court decision. “Instead they may possess an amount of medical marijuana reasonably necessary for their … needs.”

The decision means that voters – not the Legislature – would have to approve any statewide limits on medical marijuana possession for those limits to be valid.

But it left many other questions surrounding the possession and sale of medical marijuana unanswered.

It provided no clarification for local governments wrestling with how to regulate the explosion of storefront dispensaries selling medical marijuana. That issue may be addressed by another case pending before the Supreme Court that challenges local governments’ authority to block dispensaries from opening.

Thursday’s ruling did uphold the right of the state and local governments to issue medical marijuana identification cards for users.

And, according to several legal experts, it allows for local governments to set their own limits on how much medical marijuana a user can possess and for police to arrest people who violate those local limits.

The catch, the experts said, is that people can’t be prosecuted solely for violating local possession guidelines. Prosecutors would have to prove they were violating some other aspect of state marijuana law.

“It left the (local) limits in for the purposes of determining whether law enforcement can make an arrest,” said Scott Thorpe, CEO of the California District Attorneys Association. “What it said is those limits are applicable for law enforcement … But they are not applicable in a trial.”

Jeff Jones, executive director of the Patient ID Center, an Oakland group that helps people obtain medical marijuana cards, said the court affirmed an important “safe harbor” for pot patients following local guidelines.

But that “harbor” varies greatly. In Oakland, for example, medical pot users can have 72 indoor plants and 3 pounds of marijuana. Most other cities adhere to far stricter limits.

“If they grow more than the ‘safe harbor’ (of local standards), they can lose their plants, lose their medicine or lose their gardens. It is up to local interpretation by law enforcement,” Jones said.

Notably left unanswered by the ruling is what constitutes “reasonable” legal possession under state law.

“That’s the question everybody is concerned about,” said Mariellen Jurkovich, executive director of the Humboldt Patient Resource Center, an Arcata dispensary that grows marijuana.

“What does ‘reasonable’ mean? Who is going to decide what is OK for your personal use? Is it OK to have 20 pounds sitting in your house?”

Sacramento County Sheriff John McGinness said the ruling reflected “an abundance of ambiguity.”

“The trend is pretty obvious: greater acceptance and greater use of marijuana,” he said. “It does present a law enforcement challenge.”

Tamar Todd, a Berkeley attorney for the Drug Policy Alliance Network, which seeks alternatives to drug enforcement, applauded the court’s rejection of state limits on possession. But she said medical users are undermined by the lingering haze surrounding medical marijuana law.

“The problem that patients and law enforcement face under a system with no limits is that it is unclear as to who is following the law and who isn’t,” she said. “It puts patients at risk. Even though they might have a defense in court, they can be repeatedly arrested.”

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