By Allison Margolin

Allison Margolin is a criminal defense attorney practicing state and federal
criminal law in Los Angeles.

Updated: 01/24/2010 08:47:26 PM PST

ON Thursday, the California Supreme Court voted to safeguard the rights of
medical marijuana patients. Meanwhile, in courtrooms across Los Angeles, the
war against medical marijuana continues.

District attorneys are using the vagueness of the medical marijuana law to
prosecute more people. And across the country, kidnappers are getting away,
rape kits are not being tested due to funding problems, and murder cases are
left unsolved - all evidence of scary misappropriation of resources fueled
by district attorneys' passion to be drug warriors.

In the case of People v. Kelly, the California Supreme Court this month held
that the quantity limitations in the medical marijuana statutes are
unconstitutional. Other decisions have crystallized the standard by which a
court or jury determines if a medical marijuana defendant's conduct was
legal: Whether the quantity possessed is reasonable for that defendant given
his medical needs.

In 1996, the voters of California passed the Compassionate Use Act, which
provided immunity from prosecution for medical marijuana patients who
cultivated or possessed marijuana. This referendum was codified in
California Health and Safety Code 11362.5.

In 2004, the Legislature added 18 additional sections to the Health and
Safety Code in order to promote more patient access to medical marijuana by
explicitly immunizing possession for sale and sales. The Legislature also
added language that allowed for collective cultivation among patients or
their primary caregivers.

This language has been interpreted by the court of appeals to allow for
medical marijuana storefront dispensaries so long as they are collective
cultivation efforts. The statutes included 11362.77 of the Health and Safety
Code, which contained language limiting the amount of marijuana a patient
could possess to six mature plants, 12 immature plants, or 8 ounces - unless
the doctor recommended more.

The state Supreme Court ruling on Kelly found that the Legislature
unconstitutionally limited the rights afforded under the Compassionate Use
Act (to have an amount that is consistent with medical needs). The case law
relied upon by the court indicates that the Legislature may enact
legislation in an area related to a voter referendum but may not amend a
statute or take away rights given by the referendum.

Kelly also seems to suggest that defendants should acquire identification
cards from their local boards of health if want to be immune from arrest if
they are under the quantity limits or possess an amount of marijuana below
what their doctor explicitly recommends.

Now, it's up to prosecutors to follow their obligation to do justice and
follow the letter and spirit of the medical marijuana law to protect safe
access to marijuana for patients.

The public should write to the Los Angeles District Attorney Steve Cooley to
say that they don't want resources being used to prosecute marijuana cases,
and that they will not vote for him if the War on Marijuana continues to be
top priority for Los Angeles.

http://www.dailynews.com/opinions/ci_14255389