Compassionate Use Act (“CUA”)

“In 1996, the California electorate approved Proposiiton 215 and adopted the CUA, which provides ‘Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of thee patient upon the written or oral recommendation or approval of a physician.’ By this and related provisions, the CUA provides an affirmative defense to prosecution for the crimes of possession and cultivation. [citations omitted] The CUA does not grant immunity from arrest for those crimes, however. So long as the authorities have probable cause to believe that possession or cultivation has occurred, law enforcement officers may arrest a person for either crime regardless of the arrestee’s having a physician’s recommendation or approval.” (People v. Kelly (2010) 47 Cal.4th 1008, 1013.)

Proposition 64: The Adult Use of Marijuana Act of 2016 (“AUMA”)

Proposition 64 allows “adults 21 years and older to use, possess, purchase and grow nonmedical marijuana within defined limits for use by adults 21 years and older.”

Among the 28 intentions comprising statement of purpose and intent of Proposition 64, the People enacted the following:

”The purpose of the Adult Use of Marijuana Act is to establish a comprehensive system to legalize, control and regulate the cultivation, processing, manufacture, distribution, testing, and sale of nonmedical marijuana, including marijuana products, for use by adults 21 years and older, and to tax the commercial growth and retail sale of marijuana. It is the intent of the people in enacting this act to accomplish the following:

1. Take nonmedical marijuana production and sales out of the hands of the illegal market and bring them under a regulatory structure that prevents access by minors and protects public safety, public health, and the environment.
2. Strictly control the cultivation, processing, manufacture, distribution, testing and sale of nonmedical marijuana through a system of state licensing, regulation, and enforcement.
3. Allow local governments to enforce state laws and regulations for nonmedical marijuana businesses and enact additional local requirements for nonmedical marijuana businesses, but not require that they do so for a nonmedical marijuana business to be issued a state license and be legal under state law.
4. Allow local governments to ban nonmedical marijuana businesses as set forth in this act.
5. Require track and trace management procedures to track nonmedical marijuana from cultivation to sale.
6. Require nonmedical marijuana to be comprehensively tested by independent testing services for the presence of contaminants, including mold and pesticides, before it can be sold by licensed businesses.
7. Require nonmedical marijuana sold by licensed businesses to be packaged in child-resistant containers and be labeled so that consumers are fully informed about potency and the effects of ingesting nonmedical marijuana.
8. Require licensed nonmedical marijuana businesses to follow strict environmental and product safety standards as a condition of maintaining their license.
9. Prohibit the sale of nonmedical marijuana by businesses that also sell alcohol or tobacco.
10. Prohibit the marketing and advertising of nonmedical marijuana to persons younger than 21 years old or near schools or other places where children are present....”

Proposition 64: The Adult Use of Marijuana Act of 2016 (“AUMA”), Sec. 3 Purpose and Intent

Reasonable Amount of Marijuana Under the Medical Marijuana Program (“MMPA”)

In People v. Kelly (2010) 47 Cal.4th 1008, the Supreme Court of California held that the Medical Marijuana Program (“MMP”) is invalid to the extent it amends the voter-enacted Compassionate Use Act (“CUA”) by burdening a defense that would be available pursuant to the CUA, but it would be inappropriate to sever the MMP provision creating quantity limits and hence void that provision in its entirety. At odds were the provisions of the MMP Section 11362.71 and Section 11362.77(a), which provides that a “qualified patient” or primary caregiver may possess no more than eight ounces of dried marijuana and in addition maintain no more than six mature of 12 immature marijuana plants.

In Kelly the Court reviewed the appellate level determination that section 11362.77 of the MMP, insofar as it places a specific limitations upon the amount of medical marijuana that a person protected by the CUA may possess and cultivate, constitutes an amendment of the CUA in violation of California Constitution article II, section 10, subdivision (c). (Id. at 1042.) The Court found that by extending the reach of section 11362.77’s quantity limitations beyond those persons who voluntarily register under the MMP and obtain an identification card that provides protection against arrest – and by additionally restricting the rights of all “qualified patients” and “primary caregivers” who fall under the CUA- the challenged language of section 11362.7 effectuates a change in the CUA that takes away from rights granted by the initiative statute. (Id. at 1043.) In this sense, the Court found section 11362.77’s quantity limitations conflict with – and thereby substantially restrict- the CUA’s guarantee that a qualified patient may possess and cultivate any amount of marijuana reasonably necessary for his or her current medical condition. (Id.) In that respect, section 11362.7 improperly amends the CUA in violation of the California Constitution. (Id.) Whether or not a person entitled to register under the MMP elects to do so, that individual, so long as he or she meets the definition of a patient or primary caregiver under the CUA, retains all the rights afforded by the CUA. Thus, such a person may assert, as a defense in court, that he or she possessed or cultivated an amount of marijuana reasonably related to meet his or her current medical needs without reference to the specific quantitative limitations specified by the MMP. (Id. at 1049.)