Calif. Supreme Court strikes down Legislature’s attempt to set medical pot limits

Thursday, January 21, 2010

Calif. high court strikes down medical pot limits

SAN FRANCISCO — A unanimous California Supreme Court on Thursday struck down a law that sought to impose limits on the amount of marijuana a medical patient can legally possess.

The California Supreme Court ruled that state lawmakers were wrong to change provisions of the voter-approved Proposition 215. The 1996 measure allowed for patients with a doctor’s recommendation to possess an unspecified amount of marijuana.

The Legislature, seeking to give law enforcement guidance on when to make marijuana possession arrests, mandated in 2003 that each patient could have a maximum of 8 ounces of dried marijuana.

The high court says only voters can change amendments that they’ve added to California’s constitution through the initiative process. The ruling by Chief Justice Ron George left in place the portion of the new law that protects patients possessing a state-issue medical marijuana identification card from arrest. George did note, though, that police were still authorized to make arrests if they believe the cards to be forgeries or reasonably suspects a crime has been committed.

Left open to interpretation: What amount of marijuana is for legitimate personal medical consumption and how much constitutes illegal trafficking?

“The California Supreme Court did the right thing by abolishing limits on medical marijuana possession and cultivation,” said Joe Elford, the top lawyer for the marijuana advocacy group Americans for Safe Access. “At the same time, the Court may have left too much discretion to law enforcement in deciding what are reasonable amounts of medicine for patients to possess and cultivate.”

The Supreme Court’s decision upholds a lower court ruling that tossed out the conviction of Patrick Kelly, a Southern California man who was arrested for possession of 12 ounces of dried marijuana and seven plants. A “confidential informant” called Lakewood Police to report Kelly’s possession in October 2005.

Experts testified that the amount of marijuana Kelly had on hand would last him just a few weeks for treatment of hepatitis C, chronic back pain, and cirrhosis.

The ruling was widely expected because the California Attorney General’s office largely agreed with the position of Kelly’s court-appointed attorney Gerald Uelman, a Santa Clara University law professor.

Also Thursday, the Washington State Supreme Court ruled that a doctor’s permission to use medical marijuana doesn’t preclude police from arresting a patient or searching a home. The court upheld the conviction of Jason Fry, a Stevens County man busted with 2 pounds of marijuana in 2004.

Justices said sheriff’s officers who smelled marijuana smoke at his home had probable cause to believe a crime was committed — even after the man presented them with an authorization from his doctor.

Justice Richard Sanders disagreed, arguing that under the ruling, a patient could be searched, arrested and hauled to court every time an officer smelled marijuana at his or her home, even absent any evidence the patient is breaking the medical marijuana law.

Associated Press Writer Gene Johnson in Seattle contributed to this report.

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