March 18, 2009 By Wallin & Klarich

According to Attorney General Bill Lockyer, concentrated cannabis, or hashish, is included within the meaning of “marijuana” and may be used for medical purposes under Proposition 215.

Lockyer told Menocino County Sheriff-Coroner Anthony J. Craver that voters must have intended to include all forms of cannabis when they passed the “Compassionate Use Act of 1996.

Implementation of the Compassionate Use Act of 1996 has been difficult because federal authorities continue to enforce conflicting federal law which does not recognize any legitimate uses for cannabis.

Hashish is distinguished by its high level of tetrahydrocannabinol (THC). THC is the most active pharmacological ingredient in marijuana. Ordinary marijuana has a THC level of between five and 60 percent, while the concentrated from Hashish may have a THC level of as high as 70 percent.

The attorney general noted that under Proposition 215, if a patient or caregiver “possesses or cultivates marijuana for the patient’s medical purposes upon the recommendation or approval of a physician,” that person is exempt from prosecution under Health and Safety Code Sections 11357 and 11358.

Health and Safety Code Section 11357 makes possession of hashish a “wobbler,” punishable by up to three years in prison, and makes possession of up to 28.5 grams of marijuana, “other than concentrated cannabis,” a misdemeanor carrying a fine of no more than $100. An exception is made for possession of ordinary marijuana on school grounds, which carries a fine of up to $500 and/or a maximum of 10 days in jail.

Health and Safety Code Section 11358 makes cultivation of marijuana, in any form, a felony punishable by up to three years in prison as a drug crime.

The statutory definition of marijuana for purposes of Proposition 215 “plainly includes concentrated cannabis,” Lockyer wrote. There is no reason to interpret “marijuana” differently in Proposition 215 than in other laws, the attorney general explained, adding that had the authors of the initiative intended to exclude hashish from the definition, they would have used language similar to the “other than concentrated cannabis” (Section 11357).

“Of course, if concentrated cannabis were not ‘marijuana’ in the first instance, there would be no need in section 11357 to employ the phrase ‘other than concentrated cannabis,'” the attorney general explained. He added that there was nothing in the ballot materials for the initiative that indicated intent to treat hashish in a different manner than the less potent forms of the drug.

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