Possession of Medical Marijuana is Limited to the Patient’s Current Medical Needs

By: Wallin & Klarich

Why Having an Experienced Drug Offense Attorney Can Mean the Difference Between Jail and Freedom

A recent California Court of Appeals decision, People v. Archer, held that, in medical marijuana possession cases, the jury must be informed that the patient has a right to possess an amount that is reasonably related to the patient’s current medical needs.

The California Legislature recently enacted Health and Safety Code section 11362.77 of Medical Marijuana Program Act (MMPA), which provides that the “legal limit” for possessing medical marijuana was eight ounces. However, before the legislatures enacted section 11362.77, the only relevant section as to how much marijuana a medical marijuana patient could possess (or cultivate) was section 11362.5 of the California Health and Safety Code. Under section 11362.5, subdivision (d) of the Heath and Safety Code, the only qualification concerning the amount of marijuana that a medical marijuana patient could possess (or cultivate) was that the marijuana be for the “personal medical purposes” of the patient. (section 11362.5, subd. (d).)

Therefore, assuming section 11362.77, subdivision (a) of the MMPA, is unconstitutional, as the parties jointly contended, the relevant law on the issue of the amount of marijuana Archer could possess would be section 11362.5 of the California Health and Safety Code and the cases interpreting that statute.

As noted, courts have interpreted this qualification to mean a reasonable amount: “[T]he quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient’s current medical needs. What precisely are the ‘patient’s current medical needs’ [is], of course . . . a factual question to be determined by [the jury].” (People v. Trippet, 56 Cal.App.4th at p. 1549.)

Here, the evidence in the record showed Archer was using about a half pound of medical marijuana each month in April 2006, mostly by ingesting it, and that he possessed about 1.72 pounds of marijuana-or about a three-month supply of medical marijuana-when police entered his home and confiscated it and his plants. There was no evidence Archer possessed the 1.72 pounds of marijuana for purposes other than for his own personal medical use.

Because it is question for the jury to determine whether the amount of marijuana he possessed was “reasonably related” to Archer’s then-current medical needs, the Appeals Court concluded the trial court’s error in instructing the jury regarding the numerical limitation set forth in section 11362.77 of the MMPA (e.g., eight ounces of dried marijuana per qualified patient) was prejudicial.

Thus, the Appeals Court ruled that the jury should have been instructed with CALCRIM 2370: “The amount of marijuana possessed must be reasonably related to the patient’s current medical needs. If you [the jury] have a reasonable doubt about whether the defendant’s possession or cultivation of marijuana was unlawful under the Compassionate Use Act, you must find the defendant not guilty.”

If you or a loved one has been charged with possession of marijuana in California, you should call the experienced San Diego drug offense attorneys at Wallin & Klarich immediately. Our attorneys have over 30 years of experience handling drug offense cases and have the knowledge and expertise to provide you with the best possible defense. The attorneys at Wallin & Klarich are very familiar with the local courts and the laws pertaining to medical marijuana. We quickly respond to our clients’ legal needs. The attorneys at Wallin & Klarich can be reached by phone at 1-888-280-6839 or through our website at www.wklaw.com.

Posted In: Criminal Defense