Tag Archives: Medical Marijuana

The City of Garden Grove v. Superior Court of Orange County and Felix Kha (2007 – Fourth Appellate District)

Full Circle Cannabis Consultations’ Court Case Analysis of  The City of Garden Grove v. Superior Court of Orange County and Felix Kha (2007 – Fourth Appellate District) by Jason Browne



Summary

“But we are convinced by the Attorney General’s argument that governmental subdivisions of the state are bound by the state’s laws in this instance and must return materials the state considers legally possessed. We are persuaded due process will allow nothing less.”

“(The) role (that a) police department has with respect to seized property…is primarily one of custodian for the court. Even as to property not yet offered or received in evidence, we think that judicial control still exists. We regard property so taken and so held as being as much held on behalf of the court in which the contemplated prosecution will be instituted as is property taken and held under a warrant. The seizing officer claims no right in or to the property, or in or to its possession, save and accept as the court may find use for it. He must respond, as must any custodian, to the orders of the court for which he acted.”

“…the police may not destroy or otherwise dispose of the seized drugs without prior judicial approval (See California Health and Safety Code § 11473.5(a)). And if the court determines the defendant was in lawful possession of the drugs, then they may not be destroyed at all. It is up to the court to decide whether destruction is appropriate in a given case; the police role is limited.”

“No one would accuse (a municipality) of willfully encouraging the violation of federal law, were it merely to comply with (a) trial court’s order (to return cannabis). Moreover, in light of the federal immunity statute (21 U.S.C. §885 (d)), it seems rather unlikely that any officer involved in carrying out (a) trial court’s order (to return cannabis) would be subject to liability for handling…(cannabis).”

“Nothing in the C.U.A. or M.M.P.A. appears to require a qualified patient to provide evidence regarding the source of his or her (cannabis).”

“Since the M.M.P.A. effectively authorizes the conduct described in Vehicle Code § 23222(b), when…the conduct at issue is the transportation of a small amount of medical (cannabis) for personal use – (such) conduct (is) authorized by law.”

“A (municipality) cannot do indirectly what it could not do directly. That is what it seeks to do in destroying (cannabis) when it cannot punish (the qualified individuals) under the criminal law for possessing it.”

“…section 11473.5 (California Health and Safety Code) cannot be read as requiring the destruction of a controlled substance based solely on the fact that possession of the substance is prohibited under federal law. Unless the substance possessed is also prohibited under state law, the state has no authority to invoke the sanction of destruction set forth in the statute.”

“The (municipality)…(failed) to recognize (that) the police cannot retain a person’s property without running afoul of basic constitutional considerations. Particularly, the Fourteenth Amendment…provides that no state shall deprive any person of life, liberty or property without due process of law.”
Read entire Court opinion here


Jason Browne’s Analysis

Basically, once cannabis is in the hands of a qualified patient, it’s legally possessed. And obtaining it from otherwise illegal sources does not affect a qualified individual’s status under the C.U.A. and M.M.P.A., nor does it negate their defense claims.



Bearman v. Superior Court of Los Angeles (2004 – Second Appellate District)

Full Circle Cannabis Consultations’ Court Case Analysis of  Bearman v. Superior Court of Los Angeles (2004 – Second Appellate District) by Jason Browne



Summary

“Interpreting the (C.U.A.) as necessitating the waiver of a fundamental right in order to enjoy it’s protection would, we believe, hinder rather than facilitate the voters’ intent…If the Medical Boards argument (were) taken to it’s logical conclusion, then anytime a patient presents a physician’s drug prescription as proof that he or she is entitled to the drug, the patient would be in danger of waiving the right of privacy in his or her medical records.”

Read entire Court opinion here.


Jason Browne’s analysis

The presentation of a physician’s approval or recommendation to use cannabis, in order to establish qualified immunity from state criminal codes against the uses of “marijuana”, does not waive any rights to privacy or confidentiality that are granted to the patient and the physician.


Analysis For Attorneys

Basically, there is no requirement to provide a patient’s diagnoses, physician’s records or other privileged medical information to anyone, including police, district attorneys, judges or juries, in order to establish standing under the C.U.A. and M.M.P.A.

Another point of interest in this case is its apparent contradiction to the ruling in Ross v. Raging Wire. Perhaps the argument in this case would be more effective in the future, in order to establish qualified individuals’ right to labor. Rather than accept the inane argument proffered by the Supreme Court that, because the C.U.A. did not contain any language that addressed employment rights, the voters must not have intended that qualified individuals have a right to labor, it should instead be argued that the C.U.A. did not contain waivers to any existing rights, and that the rights to labor and to contract are fundamental rights that Californians share already, irrespective of the C.U.A. and the M.M.P.A.



People v. Konow (2004 – Supreme Court)

Full Circle Cannabis Consultations’ Court Case Analysis of  People v. Konow (2004 – Supreme Court) by Jason Browne



Summary

“The judge presiding in one department has the power to make and enforce all orders necessary for the disposition of the proceeding that has been assigned to his(her) department and no judge sitting in any other department can interfere… in the exercise of such power.”

“… It is settled, however, that a defendant may ‘informally suggest’ that the magistrate consider dismissal on the magistrate’s own motion…”

“… As stated, the erroneous failure by a magistrate to consider whether to dismiss a complaint in furtherance of justice under § 1385 is prejudicial when the magistrate does not clearly indicate an unwillingness to order a dismissal on that bases. Notably, the magistrate here expressed a strong desire to dismiss the complaint…”

“… Indeed, dismissal by a magistrate in furtherance of justice is permitted broadly under a variety of circumstances and for a variety of reasons…”

Read entire Court opinion here.


Jason Browne’s analysis

California’s Supreme Court upheld the original (superior court) magistrate’s dismissal of the complaint, “on the grounds that in light of the CUA, the charge of H&SC § 11360 (sales) was invalid as applied to (qualified individuals), both under the 14th Amendment’s due process clause and… (it’s)… equal protection clause.”


Analysis For Attorneys

In this case, it is again offered by the high court, as it did in Mower, that a case may be dismissed at any stage in the proceeding, including Demure, Pleadings, and Preliminary Hearings, where dismissal serves the interests of justice.



People v. Wright (2004)

Full Circle Cannabis Consultations’ Court Case Analysis of  People v. Wright (2004) by Jason Browne



Summary

“It is beyond dispute that medical authorization can provide a defense to the charge of possessing marijuana… it can also provide a defense to the charge of transporting marijuana when there is a reasonable doubt as to whether the transportation was reasonably related to the defendant’s medical needs. And it can provide a clearly relevant alternative explanation for possession where the charge is possession for sale.” “In determining that the C.U.A. was, as a matter of law, inapplicable to this case we believe the trial court prejudicially infringed Wright’s constitutional entitlement to present a defense.”

Read Entire Court opinion here.


Analysis For Attorneys

The court has found that the amounts of (cannabis) described in the M.M.P.A. constituted a floor, not a ceiling, to the amounts of (cannabis) qualified individuals may possess.



People v. Spark (2004 – Fifth Appellate District)

Full Circle Cannabis Consultations’ Court Case Analysis of  People v. Spark (2004 – Fifth Appellate District) by Jason Browne


Summary

“… the voters of California did not intend to limit the compassionate use defense to those patients deemed by a jury to be ‘seriously ill.’ ” “A physician’s determination on this medical issue is not to be second guessed by jurors…” “… a defendant need not prove the defense (facts necessary to establish the elements of defense) by a preponderance of the evidence in order… to be successful.”

Read the entire Court opinion here


Jason Browne’s Analysis

In the published portion of this opinion, we hold that the compassionate use defense of Section 11362.5 does not require a defendant to present evidence that he or she was “seriously ill.”


Analysis For Attorneys

Basically, neither the police, the district attorney nor the courts may second guess the medical opinions of the authorizing physician. The physician is not to be put on trial and the confidentiality of the patient’s health information, including any medical diagnosis, is not to be violated during the presentation of a medical use defense.