Marijuana Possession in California

[11357inCA]

A friend was pulled over for speeding (received a ticket but no DWI), and the cop smelled marijuana and took all of the medicine I was transporting to a hotel room where we were staying the weekend. I am a legal medical marijuana patient and have a recommendation that is current at the time of the incident. However, at the time when pulled over the copy of my recommendation that I had in my wallet was recently expired, and also had the wrong Driver's License # (I was not aware). The initial ticket was for 11357B - which is supposed to be $100 and an infraction.

I called the courthouse which mentioned that the DA added on a 11357A charge - which I assume was for the hash which was with the rest of my medicine. This is normally a misdemeanor, but I think can sometimes be erased from the record for first offense with a DUI-type class. However I really should not have to do that since I am a legal medical patient in the state of California transporting medicine to a temporary place of residence.

Do I really need legal counsel, or should I be confident that all charges will be dropped when I show my current recommendation? My recommendation was valid before the incident and also says that I have been a patient since 2008. Is it a good idea to deny available legal counsel unless the DA is not willing to drop the charges? Someone I spoke with advised that the DA will try to plea bargain, but I need to hold my ground to have the charges dropped since I am legal and my doctor is willing to go to court if necessary - is this sound advice? Can they prove it's more than I personally needed for the weekend?

 

[Cali408nia]

If this is your first drug related charge ever and you are over 18 years old then you will probably be offered a diversion at your arraignment. This is usually a class like you said, but it's more of a drug awareness class not a DUI class. If you accept the diversion then you are not pleading either way, you will pay for a class and the charges will be dismissed. That means you were never convicted of the charge and don't have to answer to any crimes when applying for jobs, etc. The record of the arrest will still be on file for the police, however.

I'm not sure if we know what the deal is with HS11357(b) changing to an infraction. We've had a couple posters ask why their citation asks them to appear in court when it's just an infraction now with a fine. And they never followed up to tell us the outcome.

I'm not sure you have much room to wiggle out of this by producing a valid recommendation. The law states that you must have a current recommendation with you at all times if you are a patient and possessing any cannabis. The fact that you didn't have it at that time probably makes your possession of the cannabis at that time illegal. CdwJava I'm sure will chime in here and have some advice for you about that. He often says that unless you have a state issued DHS card, the recommendation is no good to an officer. I personally have had no problem showing my recommendation to an officer and him validating it, especially since it has a phone number and website on it that verify it. Ultimately it could come down to how each county or city wants to handle the issue. It seems that like with H&S11357(b) changing to an infraction that the police have not pursued these type of cases so much, but again that depends on the county or city.

If you want to fight the case you don't need a lawyer or PD appointed to you until after the arraignment. But I'm not sure that you have much of a case and taking the diversion if offered may be worth the price of the class.

 

[CdwJava]

CdwJava I'm sure will chime in here and have some advice for you about that. He often says that unless you have a state issued DHS card, the recommendation is no good to an officer.

Not QUITE what I have said ... what I have said is that the recommendation is not necessarily binding on the officer is that there is no way to independently verify a recommendation as they can be printed on a home computer and a phone number on the card can be set to go to a voicemail alleging to be the office of Dr. Feelgood. The officer has some discretion in this area but, more often than not, it is not worth the time and effort to seize and cite someone for marijuana unless the story the officer receives stinks to high heaven.

The only sure way to avoid the discretionary seizure and citation is to have the DHS card.

If you want to fight the case you don't need a lawyer or PD appointed to you until after the arraignment.

As an infraction, no public defender can be assigned by the court.

A friend was pulled over for speeding (received a ticket but no DWI), and the cop smelled marijuana and took all of the medicine I was transporting to a hotel room where we were staying the weekend.

Just how much "medicine did you have? And was the amount you were carrying the amount that you intended to use ... er, excuse me, that you needed for the weekend?

I called the courthouse which mentioned that the DA added on a 11357A charge - which I assume was for the hash which was with the rest of my medicine.

Imagine that ...

H&S 11357(a) is a wobbler. That means it can be charged as a misdemeanor OR a felony.

This is normally a misdemeanor, but I think can sometimes be erased from the record for first offense with a DUI-type class.

You should be eligible for diversion as long as no sales or transportation offenses are alleged. That will mean drug treatment, counseling, and testing ... and, of course, a new "medicine."

Do I really need legal counsel, or should I be confident that all charges will be dropped when I show my current recommendation?

Try legal counsel. Your recommendation shouldn't cover the hash.

And in some counties (like mine) they have found that a very small percentage of doctors will actually verify a patients' status so as to validate the recommendation. In my county the DA has had zero percent compliance (as of last fall over the last 8 or so years) when doctors have been asked to confirm a recommendation. Without that confirmation, "patients" have a tough time. Hopefully your doctor will be a little more stand up.

Can they prove it's more than I personally needed for the weekend?

Yes, they can. How much did you have?

 

[Cali408nia]

Not QUITE what I have said ... what I have said is that the recommendation is not necessarily binding on the officer is that there is no way to independently verify a recommendation as they can be printed on a home computer and a phone number on the card can be set to go to a voicemail alleging to be the office of Dr. Feelgood. The officer has some discretion in this area but, more often than not, it is not worth the time and effort to seize and cite someone for marijuana unless the story the officer receives stinks to high heaven.

Very true about the recommendation often being printed on regular paper that looks like it could be doctored up (no pun intended). The recommendation I have has both a website and phone number that will verify my status 24/7. This recommendation also has a notary embossed seal on it to distinguish it from a fake copy. That is probably why I haven't had a problem.

The only sure way to avoid the discretionary seizure and citation is to have the DHS card.

Good to know.

As an infraction, no public defender can be assigned by the court.

True, but on the 11357a charge he may need one if he chooses to plead not guilty.

Try legal counsel. Your recommendation shouldn't cover the hash.

Are you saying that his CA compliant recommendation would not allow him to legally possess hash under normal circumstances? Or that producing a recommendation after he has now been charged won't do anything to help that particular charge?

 

[CdwJava]

Very true about the recommendation often being printed on regular paper that looks like it could be doctored up (no pun intended). The recommendation I have has both a website and phone number that will verify my status 24/7. This recommendation also has a notary embossed seal on it to distinguish it from a fake copy. That is probably why I haven't had a problem.

Or, your county DA doesn't want to address the issue.

Or, the local cops do not find it worth the time and effort.

Seizing and writing a report for an offense that is punishable by a fine only and even when it was a misdemeanor automatically was purged in 2 years (the ONLY offense in the state that does so - even traffic offenses do not just go away like that) was really not worth it.

Are you saying that his CA compliant recommendation would not allow him to legally possess hash under normal circumstances? Or that producing a recommendation after he has now been charged won't do anything to help that particular charge?

Whether concentrated cannabis or hash is a crime not covered under Prop 215 seems to be up in the air in some venues. A strict read of H&S 11362.7 et seq seems to indicate that "marijuana" offenses indicated under H&S 11357 are given a pass with a valid recommendation, yet the terms "hash" or "concentrated cannabis" appear nowhere in the section implying that these are not covered under the MMP. As such, concentrated cannabis, or hash, are still prosecuted offenses even with a card.

In the OP's case the AMOUNT will be an issue, as might statements by the friend and others in the car, the location where the dope was found, and whether there was indicia of use in the car. I find it difficult to believe they were headed to a hotel and ONLY the OP was going to indulge in his "medicine" for the weekend. Sorta reminds me of the many times I have gone to an apartment of a "patient" to find one 215 card, four people sitting around a table, and multiple blunts, pipes, or bongs sitting on the table ... and the patient saying HE was using all of them.

 

[Cali408nia]

Whether concentrated cannabis or hash is a crime not covered under Prop 215 seems to be up in the air in some venues. A strict read of H&S 11362.7 et seq seems to indicate that "marijuana" offenses indicated under H&S 11357 are given a pass with a valid recommendation, yet the terms "hash" or "concentrated cannabis" appear nowhere in the section implying that these are not covered under the MMP. As such, concentrated cannabis, or hash, are still prosecuted offenses even with a card.

While you are right that reading H&S code relating to medical marijuana and whether hash is included in that is up in the air because of the specific wording, the AG of CA in 2003 (Lockyer) said that hash was included in prop 215. Would this not hold up in court if one were charged? http://ag.ca.gov/opinions/pdfs/03-411.pdf

Also, if you were to come to that same conclusion that since concentrated cannabis isn't specifically mentioned, a patient can be charged, then you would basically be saying that every dispensary that sells hash, edibles, drink mixes, and other forms of marijuana other than the dried buds are selling them illegally even when the label on them points to medical use only under CA 11362.5.

Don't want to take the topic way off track, just to discuss that point so I can understand it correctly.

 

[CdwJava]

While you are right that reading H&S code relating to medical marijuana and whether hash is included in that is up in the air because of the specific wording, the AG of CA in 2003 (Lockyer) said that hash was included in prop 215. Would this not hold up in court if one were charged? http://ag.ca.gov/opinions/pdfs/03-411.pdf

The AG's opinion is not legally binding on the court and holds sway only so long as a court does not contradict it.

Plus, provisions of that opinion have been rendered moot with some subsequent court decisions with regards to quantities and the like.

Also, if you were to come to that same conclusion that since concentrated cannabis isn't specifically mentioned, a patient can be charged, then you would basically be saying that every dispensary that sells hash, edibles, drink mixes, and other forms of marijuana other than the dried buds are selling them illegally even when the label on them points to medical use only under CA 11362.5.

Yes, that might be possible. But, these dispensaries are established in areas where they are relatively assured that the local powers that be are not going to pursue them. They aren't in locations where the authorities see them as simply drug dealers operating under a smokescreen.