The District Attorney Puzzle
By Christopher Glew
There are many difficult feats each of us have to or choose to take on in our lives. The most arduous and trying task I ever completed was an Ironman distance triathlon. All the preparation, time commitment and training that went into completing a 2.4-mile swim, 112-mile bike and 26.2-mile run drained every ounce of my mental and physical being. All the sacrifices and struggles that that event required pale in comparison to the impossible feat of attempting to solve the district attorney puzzle.
Here’s the district attorney puzzle: “The voters passed a law to ensure that Californians can have safe access to medical marijuana, BUT prosecutors all over the state consistently block and deny patients access to that medicine.” Prosecutors across the state of California have continued to tell us all the allegedly illegal ways to get medicine, but offer no methodology for how to receive medical marijuana in a lawful manner. It does not matter geographically where you are. From Humboldt on down to San Diego, prosecutors will unanimously and consistently use all their resources to put you in jail for possession, transportation, cultivation or distribution of medical marijuana under virtually any set of facts.
The puzzle would be less complex and easier to understand if the law was optional or the prosecutor’s were not charged with upholding the laws of the great State of California. However, there is nothing unclear about the language of Health and Safety Code section 11362.775. This codified section of the law unambiguously states in clear language that qualified patients can associate collectively and cooperatively within California to cultivate marijuana for medical purposes, and, based on that fact, are not subject to prosecution for unlawful possession, sales, transportation, maintaining a grow house or nuisance. This provision was added in 2003 as part of Senate Bill 420, or the Medical Marijuana Program Act.
By whatever name you choose to address it, the language remains clear. However, prosecutors will obstinately argue that this provision does not allow for any exchange of money. They will fight you whether it is a donation, reimbursement, salary or any other type of overhead recovery effort. Considering that 11362.775 states clearly that patients are not subject to prosecution under Health and Safety code section 11359 (possession for sale of marijuana) on the basis that they are collectively cultivating—it is hard to understand an argument to the contrary.
On any given day in every court in California, prosecutors are advancing this contrary proposition. They will declare the monetary transactions unlawful whether the money goes into the bank, your pocket or even if it is redistributed among the collective membership.
Now, do not start getting too comfortable reading this article by saying “That does not worry me because I never exchange money for marijuana.” Unfortunately, prosecutors are charging people with violations of 11358 (cultivation), 11360 (transportation and giving away marijuana) and even 11357 (possession) every day. The citizens they are charging with felony offenses, in fact, often have valid physician recommendations or even county identification cards.
The Kelly case (which held that the maximum limit set by Senate Bill 420 was unconstitutional) set a new standard of reasonableness that existed prior to 2003, before the 8-ounce-per-patient 11362.77 rule. Ever since the Kelly case was decided, prosecutors have argued cases of less than 8 ounces being unreasonable quantities.
I have handled medical marijuana cases all over the state, including the counties of Orange, San Diego, Riverside, Los Angeles and San Bernardino, and prosecutors are all consistent on one principle: You are damned if you do and damned if you do not. If you comply with the state Attorney General’s guidelines, then they say, “Well, that is not law.” If you do not comply with the AG guidelines, then “you are violating the law.” If you have separate containers, then your marijuana is “packaged for sale,” and if it is all in one container then it is simply “too much for one person.”
We continue to fight against this prosecutorial puzzle every day. I truly believe that we will continue to see the prosecution of patients until new laws are enacted that actually bar prosecution of patients. We must contact our legislators and call for an end to this new chapter of reefer madness.
Christopher Glew is a Southern California attorney who specializes in medical marijuana law and a partner with the Law Offices of Glew & Kim. You can reach him at (714) 648-0004, or through his website, www.TheMarijuanaLawyer.com.
