May 3, 2010 By Wallin & Klarich

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).

Medical marijuana laws can be very complex and confusing. If you or a loved one is facing a charge for marijuana use, it is important that you speak with an experienced medical marijuana attorney. At Wallin & Klarich, our Chave over 30 years of experience in handling all types of drug crimes. Our attorneys will defend your rights and fight to get you the best possible result in your case. Call us today at (888) 380-6839 or visit us on our website at We will be there when you call.

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