On January 1, 2018, recreational marijuana use became legal for adults over 21 years of age in California. Medical marijuana laws under California's "Compassionate Use" Act, however, remain in full force and effect.
Significantly, California's medical marijuana laws offer certain advantages for patients over the purchase of retail marijuana. Such advantages include:
- Patients with valid medical marijuana ID cards are exempt from paying state sales and use tax applicable to recreational marijuana sales.
- Medical marijuana patients can, with a doctor's recommendation, possess and grow as much marijuana as is consistent with their reasonable needs. Recreational marijuana use has strict quantity limits (possession of not more than one ounce of marijuana or 8 grams of concentrate; cultivation of not more than 6 plants).
- Medical tinctures, capsules and topicals can contain up to 2,000 mg of THC per package, twice as much as similar products for recreational use.
- Patients under age 21 can use medical marijuana with a doctor's recommendation (and parent's consent if under 18). Recreational marijuana use is limited to adults age 21 and older.
To help you better understand California's medical marijuana laws, our California criminal defense attorneys answer the following questions, below.
1. What is California's “Compassionate Use” Act?
The CUA was passed into law by voter approval of California's Proposition 215.Its provisions are set forth in California Health and Safety Code 11362.5 and subsequent sections.
2. Who is legally entitled to use medical marijuana in California?
You are entitled to use medical marijuana in California if:
- a licensed California physician,
- has approved or recommended marijuana (either verbally or in writing),
- for the treatment of a serious medical condition.2
3. What constitutes a “serious medical condition”?
Under the CUA a “serious medical condition" is defined as:
- Acquired immune deficiency syndrome (AIDS).
- Cachexia [wasting syndrome].
- Chronic pain.
- Persistent muscle spasms, including, but not limited to, spasms associated with multiple sclerosis.
- Seizures, including, but not limited to, seizures associated with epilepsy.
- Severe nausea, and
- Any other chronic or persistent medical symptom that either:
(A) Substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act of 1990 (Public Law 101-336), or
(B) If not alleviated, may cause serious harm to the patient's safety or physical or mental health.3
4. Do I need a medical marijuana card in order to use medical marijuana?
You do not need a medical marijuana ID card (“MMIC”) in order to qualify for medical marijuana use under the CUA.4
However, having a medical marijuana card allows law enforcement to verify that you are authorized to use medical marijuana.
If you have a current, valid MMIC, an officer may not arrest you for possessing, cultivating or transporting marijuana unless:
- the information on the card is false,
- the card was fraudulently obtained, or
- you are otherwise violating the law (for instance, by possessing or growing more pot than is permitted under the CUA, or possessing it with the intent to sell it).5
5. How do I obtain a medical marijuana card?
You must apply for an MMIC in person at the health department of the county in which you reside.6 You can get an MMIC in every California county except Sutter and Colusa.
MMIC is a state-run program. Once you have your ID card, it is valid throughout California.
For more information, please see our article, How to Get a Medical Marijuana Card in California.
6. Can a medical marijuana card be used against me?
The California medical marijuana registry does not contain personal information such as name, address or social security number. The only information in the database is:
- a unique user ID number and
- whether the card is valid.7
The MMIC itself contains no personal information other than your photograph.
When someone -- such as a police officer or dispensary -- enters your ID number into the state database, they are told simply whether the card is valid or invalid. No other information is given.
7. What can a medical marijuana user legally do?
Medical marijuana users may legally:
- cultivate, and
- transport marijuana
for their personal, medical use.8
Medical marijuana laws do not allow patients to sell it or give it away, or to have possession of marijuana with the intent to sell it.9
They also do not permit medical marijuana users to smoke marijuana:
- in any place where smoking is prohibited by law,
- in or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence,
- on a school bus,
- while in a motor vehicle that is being operated, or
- while operating a boat.10
8. How much marijuana can I possess or grow?
Medical marijuana users may legally:
- possess up to eight ounces of dried marijuana,
- grow up to six mature or 12 immature marijuana plants, or
- with a doctor's recommendation, possess or grow a greater amount consistent with the patient's reasonable needs.11
They may also transport a quantity of marijuana consistent with their reasonable, medical needs.12
9. Is concentrated cannabis (hashish) permitted under the CUA?
For purposes of the CUA, concentrated cannabis (hashish) is considered marijuana.13 Thus, medical marijuana users may legally possess concentrated cannabis in an amount reasonably related to their current medical needs.14
They may also produce concentrated cannabis for their personal, medical use. However, they may not produce it using chemical solvents, such as butane.15
10. How do I find a medical marijuana doctor in California?
Medical marijuana use is not recognized under federal law. Under the federal “Controlled Substances Act” (the “CSA”), marijuana is classified as a Schedule 1 hallucinogen.16
Because it is still illegal under federal law, many doctors will not prescribe medical marijuana. However, some will, nevertheless, approve its use for your condition verbally, which is all that is required under the CUA.17
If you would prefer a written prescription for marijuana -- or are afraid to discuss marijuana with your regular doctor -- a reputable medical marijuana dispensary can usually recommend a doctor.
11. What is a medical marijuana “primary caregiver”?
A California medical marijuana “primary caregiver” is:
- an individual,
- at least 18 years of age,
- designated by a medical marijuana patient,
- who consistently assumes responsibility for the patient's housing, health, or safety.18
12. What can a medical marijuana primary caregiver legally do?
Primary caregivers of medical marijuana patients may:
- transport, and/or
Under no circumstances may primary caregivers:
- give marijuana to any other person,
- possess, cultivate or transport more than is reasonably related to the patient's medical needs, or
- sell -- or possess with intent to sell -- any marijuana.21
For more information, please see our article Primary Caregivers and California Medical Marijuana.
13. What is a primary caregiver medical marijuana ID card?
You do not need an MMIC to be a primary caregiver. But a primary caregiver ID card offers protection against arrest.22
The only differences between a primary caregiver card and a patient card are that:
- a primary caregiver card identifies you as a primary caregiver, and
- a primary caregiver card expires when the patient's card expires, even if that is less than one year from the date of issue.
You do not need to obtain your primary caregiver card at the same time the patient gets an MMIC. However, it is the patient who must apply for a primary caregiver card.23
You will need to go the county office with the patient so that you can be photographed.
14. What if I am arrested for medical marijuana?
Medical marijuana users and primary caregivers may use the CUA as a defense to many marijuana-related charges.
To make use of the defense, you will need to introduce evidence showing that:
- you (or a patient you care for) had the legal right to use marijuana, and
- the amount was reasonably related to your (or the patient's) then-current medical needs.24
Such evidence is often -- but does not have to be -- a doctor's testimony regarding your (or the patient's) medical condition and need for medical marijuana.25
Once you introduce such evidence, the burden is on the prosecutor to prove that your (or the patient's) use of medical marijuana was not justified.26
If you are a primary caregiver, you will also need to prove that:
- You have been designated for that purpose by a legal medical marijuana user,
- You are consistently responsible for that person's housing, health, and/or safety,
- The care you provide is independent of assistance you give the person in taking medical marijuana, AND
- You began taking care of the person at or before the time you assumed responsibility for assisting with medical marijuana.27
15. Can I be arrested under federal law for using medical marijuana?
Marijuana -- even medical marijuana -- is illegal under the federal Controlled Substances Act.28
However, current federal government policy is to go after large-scale drug traffickers, not individual medical marijuana users who comply with state law.29
16. How do I open a medical marijuana dispensary?
The CUA permits distribution of marijuana to medical marijuana patients and their primary caregivers through non-profit medical marijuana dispensaries.30
For more information, please see our article How to Open a Medical Marijuana Dispensary in California.
17. What is the impact of Proposition 64 (recreational marijuana legalization) on California medical marijuana laws?
In November of 2016, California voters passed Proposition 64, which legalized the use of recreational marijuana for people over 21 in California and authorized Californians to sell recreational marijuana under state-issued licenses.33
Over time, medical marijuana users in California may find it simpler to meet their medical marijuana needs through the legal recreational marijuana market. As of 2016, however, California's medical marijuana laws continue to play an important role for several reasons.
First, it will take some time for the market in recreational marijuana to get up and running in California. The latest date on which the state can start issuing licenses for recreational pot sales is not until January 1, 2018.
Second, California's medical marijuana laws permit medical users to possess more marijuana than the legal limit for recreational users (28.5 grams, or a bit more than an ounce) if their medical needs require it.
Finally, it may turn out to be the case that medical marijuana sold by non-profit collectives will be cheaper than recreational marijuana sold legally by for-profit businesses. Medical marijuana purchased with an ID card will also be exempt from sales tax.
Prop 64 made only minor changes to the existing laws on California medical marijuana. The most salient for medical marijuana users is a requirement that, as of January 1, 2018, doctor's recommendations should comply with new, stricter requirements that went into place in 2015. (However, a failure to comply with this requirement will not lead to criminal penalties.)34
Call us for help...
For more information about California's marijuana laws, or to discuss your case confidentially with one of our criminal defense attorneys, please don't hesitate to contact us at Shouse Law Group. Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada's medical marijuana laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.
1 California Health and Safety Code 11362.5(a) HS: This section shall be known and may be cited as the Compassionate Use Act of 1996.
2 California Health and Safety Code 11362(d): 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 the patient upon the written or oral recommendation or approval of a physician.
3 California Health and Safety Code 11362.7(h).
4 California Health and Safety Code 11362.71(f). It shall not be necessary for a person to obtain an identification card in order to claim the protections of Section 11362.5.
See also People v. Kelly (2010) 47 Cal.4th 1008, 222 P.3d 186 (“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.”).
5 California Health and Safety Code 11362.71 (e) No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article.
6 Contact the county for further information if the patient is unable to do so.
7 See California Department of Public Health, Medical Marijuana Program Frequently Asked Questions.
8 California Health and Safety Code 11362.765(a): Subject to the requirements of this article, the individuals specified in subdivision (b) [medical marijuana patients and their primary caregivers] shall not be subject, on that sole basis, to criminal liability under Section 11357 [simple possession], 11358 [cultivation], 11359 [possession with intent to sell], 11360 [sale], 11366 [maintaining place of sale], 11366.5 [renting place for sale], or 11570 [buildings]. However, nothing in this section shall authorize the individual to smoke or otherwise consume marijuana unless otherwise authorized by this article, nor shall anything in this section authorize any individual or group to cultivate or distribute marijuana for profit.
10 California Health and Safety Code 11362.79 HS.
11 California Health and Safety Code 11362.77 (a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient.
(b) If a qualified patient or primary caregiver has a doctor's recommendation that this quantity does not meet the qualified patient's medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient's needs.
See also People v. Trippet (1997) 56 Cal.App.4th 1532, 66 Cal.Rptr.2d 559 (“…the 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” must, of course, remain a factual question to be determined by the trier of fact. One (but not necessarily the only) type of evidence relevant to such a determination would be the recommending or approving physician's opinion regarding the frequency and amount of the dosage the patient needs.”)
12 California Health and Safety Code 11362.77(a), endnote 11.
See also People v. Wayman (2010) 116 Cal.Rptr.3d 833, 189 Cal.App.4th 215, review denied. (The amount of marijuana involved, as well as the method, timing, and distance of the transportation, are relevant factors when determining whether the transportation of medical marijuana is lawful under the Compassionate Use Act (CUA)…).
13Opinion of the Attorney General, 86 Ops. Cal. Atty. Gen. 180 (October 21, 2003) (“Concentrated cannabis or hashish is included within the meaning of ‘marijuana' as that term is used in the Compassionate Use Act of 1996.”).
14 California Judicial Council Criminal Jury Instructions (CALCRIM) 2377: The amount of concentrated cannabis possessed must be reasonably related to the patient's current medical needs.
15 Producing a controlled substance by means of chemical extraction is a felony under California Health and Safety Code 11379.6. It can be punished by imprisonment for three, five, or seven years, and a fine of up to fifty thousand dollars ($50,000).
See also People v. Bergen (2008) 166 Cal.App.4th 161, 82 Cal.Rptr.3d 577.
16 See 21 U.S. Code Sections 811(b)(1) and 812(c), Schedule I (c)(10).
17 See also Conant v. Walters (9th Cir. 2002) 309 F.3d 629, cert denied, in which the Ninth Circuit U.S. upheld a lower court injunction preventing the DEA from revoking a doctor's license merely because the doctor makes a recommendation for the use of medical marijuana based on a sincere medical judgment.
18 California Health and Safety Code 11362.5(e). For the purposes of this section, "primary caregiver" means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.
See also People v. Mentch (2008) 45 Cal.4th 274 (“[A] defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana.”).
19 See endnote 11. See also California Health and Safety Code 11362.765(b): Subdivision (a) shall apply to all of the following:
…(2) A designated primary caregiver who transports, processes, administers, delivers, or gives away marijuana for medical purposes, in amounts not exceeding those established in subdivision (a) of Section 11362.77, only to the qualified patient of the primary caregiver, or to the person with an identification card who has designated the individual as a primary caregiver.
21 California Health and Safety Code 11362.765(a), endnote 8.
22 See endnote 5.
23 The county may be able to make accommodations if the patient is unable to do so in person. Contact your local California county marijuana office for further info.
24 CALCRIM 2375. Simple Possession of Marijuana: Misdemeanor (Health & Saf. Code, § 11357(c)): …In order for the Compassionate Use Act to apply, the defense must produce evidence tending to show that (his/her) possession or cultivation of marijuana was (for personal medical purposes/ [or] as the primary caregiver of a patient with a medical need) with a physician's recommendation or approval. The amount of marijuana possessed must be reasonably related to the patient's current medical needs. The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or cultivate marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime.
25 See, e.g., People v. Trippet, endnote 11 (a physician who testifies he would have prescribed marijuana for defendant's migraine headaches if it were legal, has given tacit approval of cannabis use under the CUA).
26 See, e.g., CALCRIM 2375, endnote 24.
27 See endnote 18.
See also California Health and Safety Code 11362.7(d) "Primary caregiver" means the individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person...
28 See endnote 16.
29 See the Deputy Attorney General’s Memorandum for selected U.S. Attorneys regarding Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana, October 19, 2009.
30 California Health and Safety Code 11362.775. Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.
31 See, e.g., California Health and Safety Code section 11362.765(a) [who may belong to a collective] and 11362.768(b) [prohibition against operation of a dispensary within 600' of a school].
32 California Health and Safety Code 11362.83 HS.
33See full text of Proposition 64 (Adult Use of Marijuana Act).
34 See new Health and Safety Code 11362.712, full text of Proposition 64 (Adult Use of Marijuana Act).