Proposition 215 and You

Proposition 215 has created a new exemption from criminal penalties for medical use of marijuana. This brochure will provide a general description of how that exemption applies to Californians (this format was adapted from a handout brochure). It represents the best of our knowledge as of the date printed above. Be sure to speak with a lawyer for an up-to-date interpretation and any specific questions about your own situation.

Prop. 215 does not legalize marijuana. It changes how certain people - medical patients and their "primary caregivers" - will be treated by the State of California's court system. Patients with a doctor's recommendation to use marijuana in medical treatment have a new legal defense available to them.

If arrested on marijuana charges, patients can claim entitlement to an exemption from the law. The burden of proof is largely on the patient, to prove his or her medical need and to prove that marijuana was used with the recommendation of a doctor. Because compliance is so important, take time to understand the new law.

Who is affected by Prop. 215?

A doctor must judge whether marijuana is appropriate for treatment of a specific illness. Most of the people who use marijuana as a medicine suffer from cancer, AIDS, or glaucoma, while some people report that it helps treat symptoms of epilepsy and other diseases in which muscle spasms or seizures are common. But simply having one of these diseases does not automatically qualify anyone for the marijuana exemption under Prop. 215. Only a doctor's recommendation can do that.

For what diseases is marijuana useful?

• Nausea reduction in cancer and AIDS patients. The most common medical application of marijuana is for the reduction of extreme nausea caused by cancer chemotherapy and AIDS treatment. Patients facing such treatments often find that just a small amount of marijuana - whether inhaled, baked into foods or consumed in liquids - can immediately quell nausea or even prevent its onset. Several scientific studies in the late 1970s and early 1980s showed marijuana's value for reducing cancer patients' nausea.
• Increasing appetite. Marijuana also reportedly increases appetite for patients with nausea or other conditions, permitting more normal food intake and preventing dangerous weight loss. This is particularly important to patients with AIDS "wasting syndrome."
• Reducing eye pressure in glaucoma patients. Glaucoma is a progressive disease of the eye which can lead to blindness. It results from a buildup of pressure within the eye. Marijuana reduces the pressure within the eye, holding off some of the damage.
• Controlling muscle spasms, seizures and chronic muscular pain. Marijuana is also used medically by patients with epilepsy, multiple sclerosis, arthritis, spinal cord injuries and other conditions which are characterized by muscle spasticity, seizures and severe chronic pain.

What about the pill form of marijuana?

For some people, Marinol works fine, at least for a while. But for many patients, it is too expensive - costing up to $30,000 a year - or too powerful. Some patients say that this highly concentrated psychoactive drug "knocks them out," as opposed to marijuana in its whole form, which permits dosage to be better controlled, with milder effects.

How do I get a marijuana prescription?

Instead, Prop. 215 permits doctors to make recommendations for medical marijuana use, either in writing or verbally. Never should a marijuana recommendation be made lightly. If you are arrested and charged with a marijuana offense, the doctor may be required to testify on your behalf. For this reason, the doctor needs to be clear about the rationale for the recommendation, and should monitor the patient's progress carefully. It is best to be conservative and cautious in obtaining the recommendation and in trying to keep it valid.

Can a doctor's recommendation expire?

How can patients buy marijuana?

Can I grow marijuana?

• Yes. Under Prop. 215, the cultivation of marijuana plants for the personal, medical use of a patient is permitted. However, the seeds necessary to begin cultivating marijuana are no more legal or available than before. Again, a patient must go to the black market for seeds or seedlings, and the transaction itself is still illegal. Cultivation remains a felony in most cases under state and federal law. A person arrested and charged under state law has the right to use a Prop. 215 defense. Federal agents are believed to be unlikely to arrest and prosecute small-time growers of marijuana for medical use, because small-scale cases are not a high priority to federal law enforcement. Still, prosecutions by federal agencies are possible.
• Cultivation guidelines. It is important to take steps to keep any medical marijuana cultivation within the boundaries suggested by Prop. 215. First off, grow no more marijuana than you need for personal consumption. There is no concrete standard for numbers of plants under Prop. 215. Generally speaking, a few healthy plants should satisfy a patient's needs. Do not distribute or sell marijuana under any circumstances to anyone - especially non-patients. Any evidence of distribution puts a person at very high risk. A Prop. 215 defense will not work for someone who distributes or sells any amount of marijuana, because the new law applies only to a patient's personal, medical supply. If prosecutors discover evidence of sale or distribution, they are likely to charge a person with felony counts that could result in years of prison time, regardless of that person's medical condition or medical authorization to use marijuana.

If I'm caught, how does 215 protect me?

If a police officer has any reason to doubt that a patient is using marijuana -- or cultivating it -- for only personal, medical use, the officer is free to make an arrest. On November 6, 1996, the Attorney General issued broad guidelines for officers to help determine who has a legitimate medical-use claim under Prop. 215. These guidelines can also be helpful to patients. In part, officers have been instructed to ask about or investigate:

• the person's status as patient or caregiver, and the documented medical condition of the patient in question;
• the name of the physician who has ordered marijuana use; * quantity and packaging of the marijuana; and
• the presence of pay/owe documents, weapons, police radio scanners, or other evidence of conduct associated with drug dealing.

If you are a legitimate, medical user of marijuana, and are arrested despite attempts to prove that you are exempt from the law, you will still have opportunities to avoid prosecution.

Most legitimate cases of patients and specified caregivers facing charges for strictly medical use of marijuana should be dismissed before proceeding to trial. Local police investigators or prosecutors ought to be able to determine, from evidence presented by arrested persons, who is and who is not entitled to an exemption from the marijuana laws under Prop. 215. Some cases may go to trial, in which case the patient and physician involved should expect to testify under oath about the reasons for the patient's medical marijuana use.

Who qualifies as a "caregiver?"

So who is a "primary caregiver?" The Prop. 215 text defines such a person as "the individual designated by the ... [patient] who has consistently assumed responsibility for the housing, health or safety of that person." The fact that a person must have "consistently assumed responsibility" for the patient's welfare could narrow the definition of "primary caregiver" considerably.

Family members, very close friends and roommates of patients will fit under this definition most readily. The best advice at this time is to be conservative in designating a caregiver or in considering yourself to fit under the new law's definition. Ultimately, a judge may have to decide each case on its individual merits.

Banned activities for marijuana patients:

• Prop. 215 does not give a broad freedom to medical marijuana patients to use marijuana anywhere, any time.
• Prop. 215 contains a provision ensuring that "conduct that endangers others" remains illegal. Such conduct is likely to include driving under the influence of marijuana, operating heavy machinery, or other similar activities, in which there is a realistic risk that a person's marijuana use could impair judgment and lead to harm to other people. Courts would probably also consider smoking marijuana in public or in the workplace to be a danger to others, permitting sanctions against anyone for doing so.

A warning to all marijuana users:

Prop. 215 was designed to protect a specific class of people - the seriously and terminally ill. It does not apply to recreational users of marijuana who simply feel they get some "medical" benefit. It does not even apply to terminally ill patients who fail to get their physicians' approval. Prop. 215 enables the courts to sort out who is entitled to these new protections, and who is not. Every detail, from proof of illness to the form and reasons for a marijuana recommendation, is a potential weak link in a person's case.