Three CA Appellate Court Rulings On Prop 215

Three CA Appellate Court Rulings On Prop 215

   Last week saw three significant California Appellate Court rulings

on medical marijuana, most of them favorable to medical marijuana

patients, but one with cautionary implications for "primary

caregivers."



    (1) SAN DIEGO CHALLENGE TO PROP 215 & SB 420 ID CARDS REJECTED

 In the first, Counties of San Diego & San Bernardino  v San Diego

NORML & Wendy Christakes, the 4th appellate district court upheld the

validity of  the SB 420 medical marijuana ID card program and

discounted claims that state enforcement of Prop 215 violated federal

law.  While it might be hoped that this would prove the nail in the

coffin to this lame case, San Diego county supervisors have voted to

appeal to the state Supreme Court, where they seem destined to lose

again.

http://www.courtinfo.ca.gov/opinions/documents/D050333.PDF.  SD - NORML



   (2) WINDUS RULING REJECTS 1-YEAR RECOMMENDATION DEADLINE,

SIGNFICANTLY LIMITS "PRIMARY CAREGIVER" DEFENSE

    In the second case, People v. Windus, the 2nd appellate district

ruled that a physician's recommendation does not automatically become

invalid if it is not renewed in one year.     "Based on our

examination of the CUA (Compassionate Use Act), we see nothing in the

statute that requires a patient to periodically renew a doctor's

recommendation regarding medical marijuana use."    Although SB 420

requires that medical marijuana ID card holders renew their

recommendations annually, the Windus ruling found that this does not

restrict the legality of the recommendation under the CUA.  Note

that  the recommendation in question was issued without any

expiration date, so the decision would not apply to recommendations

where the physician has specified an expiration date.  Note too that

the CA medical board recommends that physicians perform at least

annual check-ups to avoid possible malpractice.

    In a second finding, the Windus court limited the scope of the

"primary caregiver"  defense.  In specific, it upheld the lower

court's finding that a primary caregiver must consistently assume

responsibility for the  needs of the patient, not merely occasionally

supply him or her with marijuana.   "Case law is clear that one who

merely supplies a patient with marijuana has no defense under the

CUA," wrote the court.   This interpretation of the law is  accepted

by most Cal NORML attorneys, who advise against casual or commercial

providers from relying on the "primary caregiver" defense.

 http://www.courtinfo.ca.gov/opinions/documents/B196483.PDF Windus ruling text



(3) PHOMPHAKDY REITERATES KELLY DECISION THAT SB 420 LIMITS INVALID

   In the third decision,  People v Phomphakdy, the 3rd appellate

district court in Sacto came to a similar conclusion as the recent

4th district Kelly decision, namely that the amount of marijuana

patients may legally possess or cultivate is not legally restricted

by the  SB 420 limits:  "We hold that the Medical Marijuana Program

Act's numerical limits are an unconstitutional amendment to the

Compassionate Use Act."  The court's decision was marginally less

sweeping than Kelly, in that it only invalidated the subsection of SB

420 specifying the limits, H&SC 11362.77(a), not the whole section

11362.77.  While Cal NORML agrees with the major thrust of the Kelly

and Phomphakdy decisions, they are apt to be double-edged swords.

While they have helped some defendants who exceeded the SB 420 limits

to avoid convictions, they have also invited prosecutors to take some

defendants to court who  would have previously been dismissed

automatically under SB 420 (for example, caregivers found

transporting  >1 pound in counties like Humboldt whose limits allow

it).

 http://www.courtinfo.ca.gov/opinions/documents/C056881.PDF

Phomphakdy ruling text