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Limits on medical cannabis found unconstitutional

By Bruce Margolin and Valerie Lopez

It seems that wherever patients go these days their right to possess, use and cultivate marijuana is being attacked and limited. Well, folks, that was before The Peo

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By Bruce Margolin and Valerie Lopez

It seems that wherever patients go these days their right to possess, use and cultivate marijuana is being attacked and limited. Well, folks, that was before The People v. Kelly.

On Nov. 3, the California Supreme Court heard arguments addressing the constitutionality of the quantity limitations found in the Medical Marijuana Program (“MMP”) enacted by Senate Bill 420 in 2003. As enacted in Health and Safety code 11366.77 (c), the Legislature effectively limited the quantity of marijuana patients could possess to 8 ounces and the number of plants patients could cultivate to six mature or 12 immature plants.

Over a more-than two-hour period, both Deputy California Atty. Gen. Michael Johnsen representing the State of California (but definitely not medical-marijuana patients) and Gerald Uelman representing Patrick Kelly argued whether these limits were constitutional and how the MMP should be modified to extract these limitations.

In an unexpected turn of events, Johnsen agreed with Uelman that, as enacted, the limitations were unconstitutional. Both parties agreed that the Compassionate Use Act [Prop. 215] cannot be modified or amended without voter approval. Therefore, the limitations as enacted via the MMP (through legislation) were unconstitutional and void.

Where the parties differed was how these limitations should be addressed. Johnsen asked the state Supreme Court to invalidate the quantity limitations without confirming the voluntary identification card program also established by the MMP. This would allow the court to address and potentially eliminate the voluntary card program at a later date. In contrast, Uelman requested that the court eliminate the quantity limitations but maintain and affirm the voluntary card program, ensuring legal protection from prosecution to those patients participating in the card program.

Where are we headed?

The Supreme Court has three months to decide how it will modify the current medicinal-marijuana law and whether or not the voluntary card program will be addressed. The Compassionate Use Act does allow for the severance of any unconstitutional provision or section and any decision will undoubtedly extract the unconstitutional limits in the MMP.  What remains to be seen is how the court will address the other provisions of the MMP that do not modify or amend the Compassionate Use Act. One thing for sure is that there will be no more strict numerical limits on a patient’s possession and cultivation of marijuana.

Be very cautious, because this does not mean patients will have the right to possess or cultivate as much marijuana as they want. Since the Compassionate Use Act allows each patient to possess or cultivate marijuana consistent with their current medical need, patients will need to discuss and determine with their doctors what is consistent with their current medical need and how much they can possess and/or cultivate. These discussions will guide what a patient can and cannot do.

It is unfortunate that patients must ensure their own legal safety by defining their “current medical need.” But one conversation with your doctor can help you appreciate the limitless benefits of medical marijuana.

BRUCE MARGOLIN is a criminal defense attorney based in West Hollywood since 1967. He has served as director of Los Angeles NORML since 1973 and helped write Proposition 215. VALERIE LOPEZ is an attorney with the Law Offices of Bruce Margolin, where she has practiced since graduating from Pepperdine University’s School of Law. Reach them at (800) 420-LAWS (5297), or through the website at www.1800420laws.com.

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