"Medical Marijuana and the Changing Tide of Drug Laws"

By Dana M. Grimes, Esq.

Published: October 2010 "Trial Bar News"

More like Amsterdam?  Proposition 19 - the Regulate, Control, and Tax Cannabis Act of 2010 - was on the November 2, 2010 statewide ballot.  Governor Arnold Schwarzenegger has stated "I think it's time for a debate.  And I think we ought to study very carefully what other countries are doing that have legalized marijuana and other drugs, what effect it had on those countries, and are they happy with that decision."  (May 5, 2009.  "Arnold: Time to Talk About Legalizing Pot."  The Huffington Post.) Prop 19 lost, but there is continuing controversy over the enforcement of drug laws in California, including the laws that were passed with Prop 215

The Law's Schizophrenic Approach to the Vices

Part of the dilemna with our current system is the dichotomy between the draconian punishments for certain proscribed conduct when it is criminal and the unrestricted way those same vices are advertised when they are legal.

For instance, these days the back page of any San Diego Reader magazine is full of advertisements for marijuana dispensaries.  With an easily-obtained doctor's recommendation for marijuana, you can become a partron of a variety of establishments, from "Higher Healing" to "Chronic ReLeaf," and take advantage of specials such as "Free Gram of Choice."  [For a more comprehensive list of dispensaries, see weedmaps.com.]  On the other hand, breaking the law, especially the federal law, as it relates to marijuana, can still lead to very serious consequences.  Just around the corner from "Front Street Herbal Health" dispensary is the federal courthouse on Front Street, where it is a common occurrence for an 18-year-old with no record to be sentenced to prison for being a mule (i.e., driving marijuana into the country at the request of someone paying him some nominal fee, like $500).  Or, for instance, although growing marijuana is legal in some instances under Prop. 215, the Compassionate Use Act, if you have 100 plants (even seedlings) growing at your house, the mandatory minimum federal prison sentence is five years.  Title 21 U.S.C. § 841.

Let's examine the legalization of a different vice: gambling.  Gambling is illegal in many forms, but the forms in which it is legal, such as the state lottery and Indian Reservations, are forced upon the public in loud and often misleading advertisements.  Many poor Americans believe winning the lottery is their best chance of accumulating a few hundred thousand dollars in their lifetime and they spend a significant portion of their disposable income on the games.  [The odds of winning the Mega Millions jackpot are 1:175,711,536.]

In many ways, the legalization of gambling is an interesting comparison to the legalization of controlled substances.  Of course, the justification for allowing the state to run gambling is the generation of revenue.  In terms of social harm, most social scientists would agree there is no question the state lottery increases social harm and that it does so to the people least able to bear the financial burden of supplementing state revenue.  The California State Lottery is essentially a highly regressive tax that only survives by advertising and creating false hopes among the disenfranchised and destitute sections of society.

The legalization of marijuana and other drugs would generate taxes across a wider social demographic.  And, just as the end of Prohibition took the alcohol industry out of the hands of the Mafia, legalizing and taxing the distribution of marijuana and other drugs would allow quality control in an industry that currently has none, while simultaneously undermining the primary financial base of the violent cartels responsible for destablizing Mexico and much of South America.

The present approach toward drugs in California - not to mention the conflicting federal law - is quite confusing.  In contrast to most other non-traditionally prescribed controlled substances, simple marijuana possession is basically decriminalized.  Under Health & Safety Code §11357(b), the possession of less than one ounce of marijuana is a misdemeanor punishable by a fine, while selling marijuana is a felony and may result in a prison sentence under Health & Safety Code § 11360.

In November 1996, voters passed Proposition 215, the Compassionate Use Initiative, which legalized the cultivation and possession of marijuana in California for medical purposes.  The reality of the implementation of Proposition 215 is that more people with the required doctor's recommendations are free spirits in their 20's, not glaucoma patients.  The passage of Proposition 215 has basically been a further step toward legalizing the use and, to a certain extent, the distribution of marijuana.  [We still believe there are great risks to dispensaries and other providers, because the realities of distributing to "patients," is often beyond the rather strict statutes and Attorney General Guidelines on point.]

Current Law: Penal Code § 1000

Under California's drug diversion program, Penal Code § 1000, non-violent drug offenders with no prior felonies or other drug diversions within the past five years must be diverted and referred to education, treatment and rehabilitation classes.  There must be no evidence of a violation relating to narcotics or dangerous drugs other than the offense that qualifies for diversion.  See, People v. Covarrubias (2nd Dist. 1993) 18 Cal.App.4th 639, 642 [defendant need not actually be charged with disqualifying offense].  Upon successful completion of the diversion program, the guilty plea is dismissed [the defendent is never sentenced].  This protects the defendant's record.  An eligible defendant may be diverted for a violation of a wide variety of statutes, ranging from Health & Safety Code § 11350 (felony cocaine possession) to Health & Safety Code § 11358 (cultivation of marijuana for personal use) to Health & Safety Code § 11550 (being under the influence of a controlled substance).  (See, Pen. Code § 1000(a).)

Current Law: Prop. 36

The passage of Proposition 36 in 2000, codified at Penal Code § 1210 et seq., similarly reflected the attitude of many Californians who consider drug abuse a problem that should be addressed primarily through treatment, rather than the criminal justice system.  Defendants ineligible for Penal Code § 1000 may still be eligible for Prop. 36, which allows non-violent drug offenders to attend treatment instead of serving time in custody.  In contrast to Penal Code § 1000, Prop. 36 defendants do end up with a conviction.

It is illegal to drive under the influence of marijuana or any controlled substance, even a validly prescribed one, if it impairs a person's ability to operate a motor vehicle.

Social Cost of Legalizing Marijuana

There is a social cost to vices and, of course, controlled substances have the potential to be addicting.  However, compared to alcohol, the social cost of marijuana seems unlikely to involve the side effect of violent crimes.  (In fact, anecdotal evidence leads our office to believe less bar fights would occur if 21-year-old men were under the influence of marijuana instead of alcohol.)

UPDATE - February 26, 2011:  Analysis of Prop. 19, and Where Do We Go From Here?

The California Legislative Analyst's Office ("LAO"), which provides non-partisan fiscal and policy advice, released a report on Proposition 19.  The report states that Proposition 19 would allow state and local governments to tax marijuana, generating hundreds of millions of dollars in revenue.  The LAO report states: "Proposition 19 allows local governments to authorize, regulate, and tax various commerical marijuana-related activities  . . . we estimate that the state and local governments could eventually collect hundreds of millions of dollars annually in additional revenues."

The failure of Prop. 19 will not have any significant impact on people who have a legitimate medical need for marijuana.  It also will not have much impact on recreational pot smokers who buy small amounts of pot (the amount is debatable under Prop. 215, but if they keep it under one ounce, they get the benefits of Penal Code § 1000 if they are contacted by law enforcement). They should also avoid driving after smoking pot.

Update 11/8/2011-In early October of this year, the US Attorney in San Diego, Laura Duffy, mailed hundreds of letters warning collectivesw and their landlords to close their businesses, or risk federal prosecution.  A coaltion of marijuana patients, collectives, and their landlords are going to file lawsuits in all four federal districts in California, arguing against the prosecution of these cases, on a variety of constitutional grounds.   Meanwhile, the status remains the same.   An adult apprehended in California with less than an ounce of marijuana can be given a citation for an infraction, but can not be arrested.    If the adult has a medical marijuana card, they won't even get the citation, or if they do, they will not be prosecuted.    Anyone cultivating or selling marijuana in this lucrative business (the revenue from medical marijuana in California has been estimated at several billion dollars per year) risks felony prosecution by state and/or federal authorities.

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