California Supreme Court Rejects Medical Marijuana Limits

January 22, 2010 – The California Supreme Court on Thursday unanimously struck down state limits — and, most likely, local limits, too — on how much marijuana a patient or caregiver can possess or grow for medical purposes.

But the state’s highest court revived another part of state law that a lower court had ordered voided, protecting the state’s voluntary identification-card program for patients and caregivers.

The Office of the State Attorney General had agreed with lawyers for defendant Patrick Kelly, of Lakewood, that the limits should be abolished but the ID card system retained. The ruling may have brought cheers in some cities, but it could be irrelevant in San Jose — at least for a while.

Mike Hannon, a city code enforcement official, said medical marijuana dispensaries are illegal in San Jose and his office plans to start issuing compliance letters today that will require “these businesses to close in 30 days.”

He estimated 20 to 30 of them have popped up around the city in recent months.

“As a charter city, we can regulate land use and we don’t currently permit these types of businesses,” he said, adding, “There’s no ill will on the part of code enforcement.”

Although several smaller cities have enacted moratoriums, San Jose has not, he said.

Kris Hermes, spokesman for Oakland-based Americans for Safe Access, said Thursday’s court ruling renders unconstitutional many city and county ordinances imposing
possession and cultivation limits. Oakland, for example, had set limits of up to 72 indoor plants with up to 32 square feet of canopy, or up to 20 outdoor plants at any stage of development, and up to three pounds of dried marijuana.

“I imagine it’ll apply to us as well,” Oakland City Attorney John Russo agreed. Although the ruling doesn’t affect other local regulations, such as dispensary permits or making marijuana enforcement a low priority for police., Additionally, under the ruling, those who opt into the state ID card system and abide by limits set by state or local laws may remain protected from arrest and prosecution.

But those who exceed the limits, whether or not they have an ID card, can still make a defense in court that exceeding the limits isn’t by itself a criminal act.

California voters in 1996 approved Proposition 215, the Compassionate Use Act; it set no possession or cultivation limits.

The Legislature in 2003 added new Health and Safety Code sections creating the voluntary ID card program and limiting a patient or caregiver to possessing no more than 8 ounces of dried marijuana and maintaining no more than six mature or 12 immature marijuana plants.

Kelly — who suffers from hepatitis C, back problems including ruptured disks, a fused neck, nausea, fatigue, cirrhosis, appetite loss and depression — received a doctor’s recommendation and began using marijuana medically in 2005. Later that year, Los Angeles County deputy sheriffs arrested him after finding seven potted marijuana plants in his home and more growing outside his garage, and about 12 ounces of dried marijuana.

The state Supreme Court agreed Thursday with the California Court of Appeal’s 2nd District that the 2003 law’s limits were unconstitutional. But the ID card program isn’t unconstitutional because it’s voluntary, the court found, and the possession and cultivation limits can still apply to those who choose to get ID cards as a protection against unnecessary arrest and prosecution.

Hermes said the court was right to lift the limits, but leaves a lot to law enforcement’s discretion.

“In the hostile jurisdictions, you may find police going after any patient,” he said. “That would be very unfortunate and would be a very sad outcome of this decision; however, that’s a very real possibility that we have to be vigilant to try to deter.”

Mercury News Staff Writer Linda Goldston contributed to this report. By Josh Richman. Source.

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