Southern California Defense Blog

It was recently reported that Los Angeles District Attorney Steve Cooley will prosecute medical marijuana dispensaries for over-the-counter sales of marijuana. In Los Angeles County, patients with a doctor’s recommendation can go to a medical marijuana dispensary to purchase their medication.

The number of those purchasing cannabis with a doctor’s recommendation has steadily risen, increasing demand. With the increase in demand, the number of medical marijuana dispensaries in Los Angeles has grown as well. District Attorney Cooley, along with City Attorney Carmen Trutanich, say they will target the nearly 800 dispensaries in Los Angeles that have opened since 2007. According to Cooley, there are more dispensaries in Los Angeles than the rest of the United States.

Advocates of medical marijuana say that prosecutors are misinterpreting the law, and that their actions will likely prevent sick patients from receiving needed medicinal care. Additionally, opponents to the prosecution of medical marijuana dispensaries argue that the District Attorney and City Attorneys should focus on the prosecution of serious and violent offenses, rather than focusing on dispensaries that provide medication to legitimate patients. Trutanich alleges that the dispensaries draw a criminal element, and at least one murder and nearly 200 robberies took place near a dispensary last year.

If you or a loved one have been charged with a crime, it is imperative that you hire an aggressive, experienced criminal defense firm. Hiring an experienced criminal defense law firm can greatly increase your chances of keeping your freedom, and ensuring you receive the lowest possible sentence. The attorneys at Wallin & Klarich have been helping people for over 30 years.

Please feel free to contact Wallin & Klarich to discuss your case. You can reach us 24 hours a day, 7 days a week at 877-466-5245 or go to our website at wklaw.com for more information. Our attorneys can be reached by phone at 1-888-280-6839 or through our website www.wklaw.com. We will be there when you call.

California passed Proposition 215, the Compassionate Use Act (“CUA”), in 1996. The CUA allows patients and caregivers to possess and cultivate marijuana for the purpose of medical treatment. Despite the federal government’s continued ban on the possession of marijuana, the California state legislature enacted Health and Safety Code 11362.5 because of Proposition 215.

Sometimes law enforcement will happen upon a medical marijuana card that was issued, say a couple of years prior. Some police officers may assume that the card has since expired, and that the possessor no longer qualifies under the CUA. However, a medical marijuana recommendation does not expire. People v. Windus, 165 Cal.App. 4th (2d Dist. 2008). Windus essentially reasoned that a prescribing doctor cannot and should not presume to know when the patient’s (or caregiver’s) need for the marijuana will subside altogether. Some doctors will issue a medical marijuana card with a set expiration date. Arguably, per Windus, the expiration date set by the doctor should not automatically disqualify the patient under the CUA. Of course, this does not mean that once a person is issued a medical marijuana card he can legally possess marijuana in California for the rest of his life. The CUA still limits the legal possession of marijuana to what is reasonably required for the patient’s current medical needs.

A physician may issue a medical marijuana card to anyone whose “health would benefit from the use of marijuana” in the treatment of any illness.” The code actually lists eight separate illnesses that can legally be treated by marijuana, but then adds the catchall phrase, “or any other illness for which marijuana provides relief.” H&S Section 11362.5(b)(1)(A).

The CUA did not limit the amount of marijuana that a patient or caregiver could possess. The legislature set a limit in the Medical Marijuana Program (MMP), a law codified in Health and Safety Code 11362.7. The MMP allows a qualified patient or primary caregiver to possess no more than eight ounces of dried marijuana flowers per patient. H&S 11362.77(a). In addition, the individual may possess up to 6 mature marijuana plants or 12 immature marijuana plants. However, if the patient or caregiver has a recommendation from a doctor indicating that eight ounces is insufficient for the individual’s needs, the individual may have possessed an amount of marijuana consistent with his or her needs. H&S 11362.77(b).

If a defendant charged with a felony can prove that he is a qualified medical marijuana patient or caregiver, the prosecution should dismiss the charges against him before trial. If the case goes to trial, the defendant does not have the burden of proving by a preponderance of evidence that he is a qualified patient under CUA as an affirmative defense. Instead, the defendant need only raise a reasonable doubt that he is guilty of the crimes charged. See People v. Mower 28 Cal.App. 4th 634 (2008).

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Anyone charged with possession for sale of marijuana should speak with an experienced drug possession attorney in Southern California. Possession for sale of marijuana is a serious crime that comes with harsh penalties and consequences.

California Health and Safety Code Section 11359 makes it a felony for anyone to unlawfully possess marijuana for the purpose of sales. To be convicted under Section 11359, it needs to be proven that the defendant unlawfully possessed marijuana; the defendant knew of its presence; the defendant knew of the substance’s nature as a controlled substance; the defendant possessed a usable amount; and that at the time of the possession, the defendant had the intent to sell it.

With a knowledgeable criminal defense attorney on your side, you can raise certain defenses against this charge. A viable defense that may be available to you is submitting a motion to the court to suppress evidence of confiscated marijuana. If the evidence is shown to have been illegally obtained, the judge may decide not to admit it as evidence. This would likely result in the dismissal of the case against you. You may also be able to challenge the individual elements of the charge by claiming a lack of possession, knowledge of the drug’s presence or nature, presence of a usable amount, or the intent to sell.

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