Surprising news in California medical marijuana law: the California Attorney General has conceded that the legislature’s amendment of the 1996 Compassionate Use Act was unconstitutional, meaning that criminal defendants may soon be able to regain the ability to put on a trial defense under the Compassionate Use Act even if the amount of medical marijuana they possess exceeds the 8-ounce/6-mature-plant presumptive limits spelled out under the law enacted by the California legislature in 2003.
Instead, the AG isn’t even fighting the constitutional point. Its brief comes right out and states that it “does not contest the Court of Appeal’s conclusion that section 11362.77 [the section of the Health and Safety Code that sets the quantity limits] is
The AG’s argument, then, is simply about the fact that the court of appeal could have created a more nuanced remedy to this constitutional problem by essentially making it clear that the MMP and the CUA operate as two distinct
Curiously, back in August, the AG released medical marijuana “guidelines” that did not discuss the idea that a medical marijuana patient could exceed the MMP quantity limits but still put on a defense under the Compassionate Use Act. In my opinion, the AG’s reasonable position in Kelly will probably fix that problem, and will produce a structure that is both workable and coherent. The guidelines will provide clarity and security to individuals who want to be sure that they are staying within defined limits, while the Compassionate Use Act and the Trippet test will (if the Cal Supremes agree, and if they write an opinion that is sufficiently clear that trial courts and prosecutors can’t wriggle out of it) continue to provide a “reasonableness” standard to be applied in situations where the quantity limits don’t make sense for particular individuals.