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California Attorney Gen. Releases Proposition 215 Guidelines


March-April 1997

On February 24, California Attorney General Dan Lungren released guidelines for the enforcement of state marijuana laws in context of the Compassionate Use Act of 1996 (Proposition 215), which allows for the possession and cultivation of marijuana for medical uses (Information Bulletin (No. 97-BNE-01), "Peace Officer Guide: Compassionate Use Act of 1996, Section 11362.5 Health and Safety Code," California Attorney General's Office, February 24, 1997). For information, contact Tom Gorman at (916) 227-4044 or John Gordnier at (916) 3247-5169, California DOJ, Division of Law Enforcement.

The guidelines state: "It is not incumbent on a police officer to inquire whether the individual cultivating, possessing or using marijuana is doing so for medical purposes. It is the responsibility of an individual to claim that he/she has an affirmative defense under Proposition 215 as either a 'patient' or a 'caregiver.'" If the individual makes such a claim, "the officer should detain the person for the purpose of making those inquiries necessary to determine whether there is a legitimate affirmative defense." The guidelines suggest questions to ask to determine if the patient or caregiver is covered by the law, and if the patient has received a proper recommendation for marijuana by a physician. [The guidelines do not suggest making Miranda warnings and raise serious Fifth Amendment problems. -- EES]

According to the Attorney General, in order to be covered by the law, patients: (1) "Must be California residents." (2) "Must be seriously ill." Minor injuries and illnesses are not covered. Illnesses covered include cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, and migraines. (3) "Must have had an examination by a physician," and the physician must have recommended marijuana as a treatment. (4) "Must not be engaged in behavior that endangers others" and "cannot be involved in any diversion of marijuana for nonmedical purposes." (5) "Cannot cultivate or possess amounts greater than necessary for their personal medical needs."

As defined by the guidelines, a primary caregiver: (1) "Must be an individual specifically designated by the patient" and "the caregiver's role must have been established prior to the designation to be valid." (2) "Must have prior and consistent responsibility for the patient's housing, health, or safety." (3) "Is the only individual who can qualify for the specific patient" and "must have personal knowledge of the doctor's recommendation." Secondary or general caregivers may not assert the affirmative defense. (4) "Cannot engage in any conduct that endangers others" or "be involved in diversion of marijuana for nonmedical purposes." (5) "Cannot possess marijuana for sale or sell marijuana."

The guidelines conclude that officers should "abide by the spirit of the voters' narrow intention regarding Proposition 215," and take "special care not to violate anyone's rights or develop bad case law." In addition to the state guidelines, officers must also know their local district attorney's policies regarding Proposition 215, such as those being developed by San Francisco District Attorney Terence Hallinan.