Medical Marijuana Remains Highly Contested

July 9, 2009

Since California voters led the nation in legalizing medicinal marijuana more than a decade ago, this has been one of the most hotly debated topics nationwide.

July 09, 2009 /24-7PressRelease/ -- Medical Marijuana Remains Highly Contested

Article provided by Law Office of Vikas Bajaj, APC
Visit us at http://www.bajajlaw.com

Since California voters led the nation in legalizing medicinal marijuana more than a decade ago, this has been one of the most hotly debated topics nationwide. Acceptance of medical marijuana is growing and the trend is clear; over the past thirteen years, thirteen states have adopted laws permitting the use of medical marijuana. However, even in those states where such laws have passed, the debates have not ended. Those supporting and opposing such laws remain equally passionate and devoted to their beliefs.

A recent case in California illustrates the ongoing nature of this debate. In the consolidated cases of San Diego County, et al. v. San Diego NORML, et al and San Bernardino County, et al. v. California, et al., two California counties sued California, requesting a judicial declaration that they did not have to comply with certain provisions of the California Code. Essentially, the counties did not want to issue Medical Marijuana Identification Cards (ID Cards), which help to prevent the unlawful persecution of individuals who are allowed to possess marijuana.

Ultimately, the counties lost; California laws are clear and the state courts upheld these laws. However, this case effectively illustrates the ongoing battles surrounding medical marijuana. It also demonstrates some local governments' disapproval of medicinal marijuana laws. This disapproval effects not only the application of medicinal marijuana protections to criminal defendants, but also the aggressive prosecution of all narcotics violations.

The Laws Governing Medicinal Marijuana in California

To understand the battle, one must first understand the differences between federal and state laws. Under federal law, marijuana remains illegal, with significant penalties for the possession, use, cultivation or distribution of marijuana. This creates an obvious conflict as many cases that may find protection under California state laws will not find the same protection under federal law. Of course, there are many factors, in addition to actual quantity of marijuana, that determine potential exposure.

Current California laws depart significantly from these federal laws. In 1996, California voters enacted Proposition 215, the medical marijuana law also known as the Compassionate Use Act. This law allows certain individuals with demonstrated medical needs to have and use marijuana for medicinal purposes. However, this law failed to provide any effective way for law enforcement officers to identify individuals who were permitted to have marijuana, leading to wrongful arrest.

To address this concern, California lawmakers enacted the Medical Marijuana Program Act (MMP) in 2003. Among other things, this act laid the groundwork for the establishment of the Medical Marijuana Identification Card Program. As part of this program, qualified individuals can apply for ID Cards, which are issued by the individual's county of residence. This card can help law enforcement officials determine whether an individual is legally permitted to possess marijuana under the Compassionate Use Act, thereby reducing unwarranted harassment.

San Diego and San Bernardino Counties versus California Voters and Lawmakers

Since the passage of the medical marijuana laws in California, the differences between state and federal laws have created significant tensions. San Diego provides but one example of these tensions.

Under the MMP, California counties are required to take an active role in protecting the rights of individuals who are allowed to possess marijuana under California law. County governments must provide applications for ID Cards, receive and process these applications, verify the accuracy of the information presented in the applications, approve the requests of qualified applicants, issue identification cards, and maintain records of the program.

In an effort to circumvent the will of California voters and state lawmakers, San Diego and San Bernardino counties refused to comply with their obligations under the MMP. Both counties filed suit against California, seeking a judicial declaration that they were not required to comply with the MMP because the MMP was preempted by the federal Controlled Substances Act.

Under the Supremacy Clause of the US Constitution, when state laws conflict with federal laws, state laws are preempted by federal laws. Essentially, the counties argued that the MMP was preempted by federal law because it impedes the congressional intent embodied in the Controlled Substances Act.

Both the San Diego Superior Court and the Fourth District Court of Appeals promptly rejected this argument. As the appellate court noted, Congress has expressly rejected any arguments that the Controlled Substances Act generally preempts state laws regarding the same subject matter.

The counties sought review in the California Supreme Court, but the Court denied review. In a final effort to preference ideological principles over the clearly articled state laws, the counties sought review in the US Supreme Court. This Court also declined to review the case.

Accordingly, five years after the MMP was originally enacted, San Diego and San Bernardino counties are finally preparing to issue ID Cards. San Diego will begin accepting applications on July 6, 2009. San Bernardino County will begin issuing these cards before the end of July 2009.

California Drug Laws Are Shifting, But The Potential Penalties Remain Severe

Slowly, the voters of California are winning this battle. Law enforcement agencies, long-trained to treat all people possessing any drugs as criminals, are gradually acknowledging that the laws have changed and possession is not always a crime. The ID cards further increase the protections provided to people who are lawfully in possession of marijuana; even the counties holding out for ideological reasons are gradually mending their ways.

However, it is important to note that this does not indicate a complete and final shift in drug policies. Under the medical marijuana laws, only select people are allowed to possess or cultivate marijuana for personal use. Most people cannot legally possess marijuana and still face potentially serious punishments. Possessing marijuana for personal use is a misdemeanor with a fine up to $100; selling or cultivating marijuana is a felony punishable by two to four years in state prison. Anyone charged with any type of drug crime must take these allegations seriously and should speak with a knowledgeable criminal defense attorney.

Article provided by Law Office of Vikas Bajaj, APC
Visit us at http://www.bajajlaw.com

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