happy new year

good luck in 2010

On August 25, 2008, the Attorney General of California issued
comprehensive guidelines concerning medical marijuana. Among
its other provisions, the Guidelines make clear that storefront dispensaries
may operate legally under California law, so long as
they do not operate for profit and follow other applicable regulations.
The full Attorney General Guidelines can be read at

www.AmericansForSafeAccess.org/AGGuidelines
Disclaimer: Medical marijuana law in California is continually evolving and medical marijuana remains illegal
under federal law.

If something in this August 2009 manual appears out of date or inaccurate, please consult with an attorney or contact ASA at 510-251-1856 or 1-888-929-4367.

Fortunately, many patients and caregivers never encounter law
enforcement problems. Those that do, fairly regularly report successful
interactions with local and county police. Many municipalities
offer strong protection to medical marijuana patients.

However, even in friendly jurisdictions, patients are still being
harassed and arrested for medical marijuana, even if they present
a valid, current doctor’s recommendation and a cooperative dispensary
membership card.

+++++++++++++++++++++++++++++++++++++++++++++++++++

Become a Member of ASA!
Your contribution allows us to spend more time working for
patients and less time raising money. Your ongoing support is crucial
to our success! There are three ways to contribute:
1. Online: Visit www.AmericansForSafeAccess.org/Donate
2. By Phone: Call us toll-free at 1-888-929-4367
3. By Mail: Send a check or money order to:
Americans for Safe Access
1322 Webster Street, Suite 208
Oakland, CA 94612

certified pot dealer school

Health and Safety Code 11362.5, the California medical marijuana
law, protects patients and their primary caregivers from prosecution
for marijuana law violations. By state law, a designated caregiver
is allowed to possess, manufacture, and provide marijuana,
in all its varieties and forms, for the patient in his/her care. The
caregiver is not allowed to use this marijuana for his/her personal
use, nor can s/he provide this medicine to non-qualified patients.

There is no official registration system to become a caregiver for
a medical marijuana patient, so it is a good idea to draft an
agreement yourselves. This can be an oral or written agreement
in which the patient designates you as his/her “primary caregiver.”

A sample agreement can be found at:

www.AmericansForSafeAccess.org/CaregiverAgreement

At this time, you should discuss the needs of your patient, related
to both medical marijuana and other care, decide a plan of
action, and then get to work.

The role of caregiver is more clearly defined in the law’s text as
an “individual designated by the person exempted under this section
who has consistently assumed responsibility for the housing,
health, or safety of that person.” The courts have strictly construed
this definition to require caregivers to assist patients in
matters of personal health and well-being beyond the mere provision
of medical marijuana.

Obtaining Medical Marijuana for Qualified
Patients

Even though the CUA encourages “federal and state governments
to implement a plan to provide for the safe and affordable
distribution of marijuana to all patients in medical need of marijuana,”
no such well-defined plan exists. Until such time as it
does, patients may use collectives or cooperatives to obtain their
medicine. SB 420 explicitly allows for medical marijuana collectives
and cooperatives, and nothing in state law prohibits collectives
and cooperatives from dispensing as part of their operation.
The following models have developed since the passage of the
CUA and SB 420:

1. The Cooperative Model seeks to combine the efforts of
patients and caregivers, as the two groups work together to educate
the public and grow marijuana. Each individual involved is
expected to give what he or she can to the endeavor. In return,
the cooperative offers its members safe access to medical marijuana,
often at no cost. While caregivers can be part of a cooperative,
none need to participate for a cooperative to be viable. It
should be noted that cooperatives are entities defined by state
law, and that law must be consulted and followed before a cooperative
is formed.

2. The Collective Model is considered very similar to the
Cooperative Model, with the difference being that state law does
not define collectives.

3. The Collective Dispensing Model is perhaps the most commonly
used model across the state. Due to the conflict between
state and federal law, specifically with regard to “distribution,”
ASA encourages caution when implementing such a model. From
a patient’s standpoint, this model is the most simple mechanism
through which the patient can receive medical marijuana. Each
dispensary maintains its own membership of legally qualified
patients, and those members are allowed safe access to marijuana.

A Collective or Cooperative Dispensary with patient services is
a more comprehensive model. Using this model, the dispensary
does not simply provide its members the opportunity to secure
marijuana, but it also offers other services to meet the needs of
the patient’s general well being. At these facilities, health-care
providers may offer services, such as peer counseling, hospice style
care, classes on various topics like cultivation, as well as
other special events benefiting patients.

++++++++++++++++++++++++++++++++++++++++++++++++++

Become a Member of ASA!
Your contribution allows us to spend more time working for
patients and less time raising money. Your ongoing support is crucial
to our success! There are three ways to contribute:
1. Online: Visit www.AmericansForSafeAccess.org/Donate
2. By Phone: Call us toll-free at 1-888-929-4367
3. By Mail: Send a check or money order to:
Americans for Safe Access
1322 Webster Street, Suite 208
Oakland, CA 94612

green flag gina is all about dealer education

In order to qualify under California law, a
patient must have a doctor’s recommendation or approval. A doc-
tor may recommend or approve the medical use of marijuana for
any condition for which it provides relief.

Ask Your Regular Doctor for a Recommendation

Be forthright with your doctor. There is nothing wrong with
using medical marijuana or discussing it with your doctor. A federal
court has ruled that, under the First Amendment, doctors
may not be punished for recommending medical marijuana.
•

Ask for a written recommendation. Although an oral one is
acceptable, it is difficult to verify. A written recommendation
is more helpful in defending oneself against criminal charges.
•

Tell your doctor specifically what condition or symptoms you
treat with marijuana. Honestly describe the amount of marijuana
you use, how often, and by what delivery method.
•

When recommending quantities of marijuana for medicinal
use, doctors may recommend a certain amount based on your
need and experience with what works.

If this amount is
above the state minimum or local guidelines, doctors do not
need to specify an amount; they only need to note that a
patient requires more to meet their medical need than the
guideline amount for that jurisdiction.
•

If your doctor does not issue medical marijuana recommendations,
you may need to visit a medical marijuana specialist.

Medical Marijuana Specialists

There are a number of California physicians and clinics available
for medical marijuana consultations. Before consulting a medical
marijuana specialist, patients should already have medical records
of diagnosis and treatment or a physician referral. You can find a
listing of some specialists at www.canorml.org. Be aware that:
• The doctor will want to see your medical records.
• It can cost more than $100 to see a medical marijuana specialist.
• Paying the money does not guarantee that you will get a recommendation.
If you have more questions on how to become a legal patient,
contact ASA or see:

www.AmericansForSafeAccess.org/CAPatient

+++++++++++++++++++++++++++++++++++++++++++++++++

Become a Member of ASA!
Your contribution allows us to spend more time working for
patients and less time raising money. Your ongoing support is crucial
to our success! There are three ways to contribute:
1. Online: Visit www.AmericansForSafeAccess.org/Donate
2. By Phone: Call us toll-free at 1-888-929-4367
3. By Mail: Send a check or money order to:
Americans for Safe Access
1322 Webster Street, Suite 208
Oakland, CA 94612

green flag compliance ++ we make it simple for you

ASA had received several reports of the DMV suspending or
revoking driver’s licenses from medical marijuana patients based
solely on their status as such.

In 2009, through litigation, ASA
forced the DMV to issue a new written policy treating medical
marijuana use like other prescription drugs.

Driving Under the Influence

Notwithstanding California’s medical marijuana laws, it remains
illegal to drive under the influence of marijuana, as it is illegal to
drive under the influence of some prescription medications.

A trend in law enforcement has been for police to stop drivers, find
marijuana and, after realizing that possession charges will be
futile, the officer will often charge patients with DUI as a last
resort, even when the patient has not medicated for a long time.

These are much more complicated cases, and require more individual
attention. If you have been involved in one of these situations,
please see:

www.AmericansForSafeAccess.org/DUI

++++++++++++++++++++++++++++++++++++++++++++++

Become a Member of ASA!
Your contribution allows us to spend more time working for
patients and less time raising money. Your ongoing support is crucial
to our success! There are three ways to contribute:
1. Online: Visit www.AmericansForSafeAccess.org/Donate
2. By Phone: Call us toll-free at 1-888-929-4367
3. By Mail: Send a check or money order to:
Americans for Safe Access
1322 Webster Street, Suite 208
Oakland, CA 94612

certified pot dealer school

+++++++++++++++++++++++++++++++++++++++++++

Become a Member of ASA!
Your contribution allows us to spend more time working for
patients and less time raising money. Your ongoing support is crucial
to our success! There are three ways to contribute:
1. Online: Visit www.AmericansForSafeAccess.org/Donate
2. By Phone: Call us toll-free at 1-888-929-4367
3. By Mail: Send a check or money order to:
Americans for Safe Access
1322 Webster Street, Suite 208
Oakland, CA 94612

green flag gina is all about dealer education

California patients and caregivers have
been the targets of extreme charges and harsh penalties for medical
marijuana in these “Drug Free School Zones.”

These Drug
Free School Zone laws can double the maximum sentences in federal
court. SB 420 explicitly states that it does not authorize the
smoking of marijuana “in or within 1,000 feet of the grounds of
a school, recreation center, or youth center, unless the medical
use occurs within a residence.” SB 420 says nothing about cultivation
of marijuana near schools and recreational centers.

++++++++++++++++++++++++++++++++++++++++++++

Become a Member of ASA!
Your contribution allows us to spend more time working for
patients and less time raising money. Your ongoing support is crucial
to our success! There are three ways to contribute:
1. Online: Visit www.AmericansForSafeAccess.org/Donate
2. By Phone: Call us toll-free at 1-888-929-4367
3. By Mail: Send a check or money order to:
Americans for Safe Access
1322 Webster Street, Suite 208
Oakland, CA 94612

certified pot dealer school

These laws are generally applied only against persons who
possess, cultivate, or distribute large quantities of marijuana.
Under federal law, marijuana is treated like every other controlled
substance, such as cocaine and heroin. The federal government
places every controlled substance in a schedule, in principle
according to its relative potential for abuse and medicinal
value.

Under the CSA, marijuana is classified as a Schedule I drug,
which means that the federal government views marijuana as
highly addictive and having no medical value. Doctors may not
“prescribe” marijuana for medical use under federal law, though
they can “recommend” its use under the First Amendment.

The Drug Enforcement Administration (DEA), charged with
enforcing federal drug laws, has taken a substantial interest in
medical marijuana patients and caregivers in general, and large
cultivation and distribution operations more specifically. Over the
past few years, dozens of people have been targets of federal
enforcement actions. Many of them have either been arrested or
had property seized. More than a hundred providers are currently
in prison or are facing charges or ongoing criminal or civil investigations
for their cultivation or distribution of medical marijuana.

The DEA, like local enforcement agencies, can choose how to
make the best use of its time. Ideally, the DEA will leave medical
marijuana patients and their caregivers alone. But federal law
does not yet recognize medical marijuana, and the DEA is currently
allowed to use the Controlled Substances Act to arrest people
for its use. In many pending and past cases, the DEA and U.S.
Attorney’s office have used exaggerated plant numbers and
inflammatory rhetoric, as well as informants who trade jail time
for testimony, to justify enforcing federal laws against medical
marijuana patients and caregivers in California and other states.

Federal marijuana laws are very serious, and punishment for people
found guilty is frequently very steep. Federal law still considers
marijuana a dangerous illegal drug with no acceptable medicinal
value. In several federal cases, judges have ruled that medical
marijuana cannot be used as a defense, though defense attorneys
should attempt to raise the issue whenever possible during trial.

Federal law applies throughout California and the United States,
not just on federal property. The key to federal property is that it
is more likely than non-federal property to have federal officials
monitoring it. Most likely, even if a patient is arrested on federal
property and charged with a minor possession offense, he will be
referred to the state authorities where he can assert a medical
marijuana defense.

There are two types of federal sentencing laws: sentencing guidelines,
enacted by the United States Sentencing Commission, and
mandatory sentencing laws, enacted by Congress. The Sentencing
Commission was created in 1987 to combat sentencing disparities
across jurisdictions. The current mandatory minimum sentences
were enacted in a 1986 drug bill.

Federal sentencing guidelines take into account not only the
amount of marijuana but also past convictions. Not all marijuana
convictions require jail time under federal sentencing guidelines,
but all are eligible for imprisonment. If convicted and sentenced
to jail, a minimum of 85% of that sentence must be served. The
higher the marijuana amount, the more likely one is to be sentenced
to jail time, as opposed to probation or alternative sentencing.

Low-level offenses, even with multiple prior convictions,
may end up with probation for the entire sentence of one to
twelve months, and no jail time required. Possession of over 1 kg
of marijuana with no prior convictions carries a sentence of six to
twelve months with a possibility of probation and alternative sentencing.

Over 2.5 kg with no criminal record carries a sentence of
at least six months in jail; with multiple prior convictions, a sentence
might be up to two years to three years in jail with no
chance for probation.

In United States v. Booker (2005), a Supreme Court decision from
January 2005, the court ruled that the federal sentencing guidelines
(as outlined above) are advisory and no longer mandatory.

However, many federal judges continue to give great deference
to the guidelines.

In addition to the sentencing guidelines, there are statutory
mandatory minimum sentences, which remain in effect after
United States v. Booker and primarily target offenses involving
large amounts of marijuana. There is a five-year mandatory minimum
for cultivation of 100 plants or possession of 100kgs, and
there is a ten-year mandatory minimum for these offenses if the
defendant has a prior felony drug conviction. Cultivation or possession
of 1000kg or 1000 plants triggers a ten-year mandatory
minimum, with a twenty-year mandatory sentence if the defendant
has one prior felony drug conviction, and a life sentence
with two prior felony drug convictions.

To avoid a five-year
mandatory minimum, it is advisable to stay well below 100 plants,
including any rooted cuttings or clones.

+++++++++++++++++++++++++++++++++++++++++

Become a Member of ASA!
Your contribution allows us to spend more time working for
patients and less time raising money. Your ongoing support is crucial
to our success! There are three ways to contribute:
1. Online: Visit www.AmericansForSafeAccess.org/Donate
2. By Phone: Call us toll-free at 1-888-929-4367
3. By Mail: Send a check or money order to:
Americans for Safe Access
1322 Webster Street, Suite 208
Oakland, CA 94612

green flag compliance ++ we make it simple for you

Due to this constitutional
division of authority between the federal government and
the states, the State of California may elect to decriminalize conduct,
such as medical marijuana activity, which remains illegal
under federal law.

Even if law enforcement officers take a personal
position on any conflict between state and federal law,
they are bound by California’s Constitution to uphold state law.

Under California’s medical marijuana laws, patients and caregivers
are exempt from prosecution by the State of California,
notwithstanding contrary federal law.

In People v. Tilehkooh (2003), the court found that California
courts “long ago recognized that state courts do not enforce the
federal criminal statutes.” The same court also stated “the federal
criminal law is cognizable as such only in the federal courts.” In
People v. Kelly (1869), it was determined that “State tribunals
have no power to punish crimes against the laws of the United
States as such.

The same act may, in some instances, be an offense
against the laws of both, and it is only an offense against the
State laws that it can be punished by the State, in any event.”
In 2006, California Attorney General Bill Lockyer clarified the role
and responsibility of the state in upholding medical marijuana
law. In a case where ASA is assisting a patient in seeking the
return of his unlawfully seized medicine, a Superior Court ruled
against the patient, claiming that, “[medical marijuana cultivation
is] still illegal under federal law.”

On appeal, Lockyer dismissed
the entire federal law argument by stating that, “the continuing
prohibition of marijuana possession under federal law”
does not come into play. Instead, Lockyer “acknowledges that -
both generally and in the specific context of interpreting the
Compassionate Use Act – it is not the province of state courts to
enforce federal laws.” This statement is fully consistent with the
declaration of the court of appeal in Garden Grove v. Superior
Court (2007) that “it must be remembered it is not the job of the
local police to enforce the federal drug laws as such.”

++++++++++++++++++++++++++++++++++++++++++++++++

Become a Member of ASA!
Your contribution allows us to spend more time working for
patients and less time raising money. Your ongoing support is crucial
to our success! There are three ways to contribute:
1. Online: Visit www.AmericansForSafeAccess.org/Donate
2. By Phone: Call us toll-free at 1-888-929-4367
3. By Mail: Send a check or money order to:
Americans for Safe Access
1322 Webster Street, Suite 208
Oakland, CA 94612

green flag gina is all about dealer education

The Raich decision does not say that the laws of California (or any
other medical marijuana state) are unconstitutional; nor does it
invalidate them in any way. Also, it does not say that federal officials
must prosecute patients. Decisions about prosecution are still
left to the discretion of the federal government.

According to a post-Raich statement by California Attorney
General Bill Lockyer, the ruling does not overturn California law
permitting the use of medical marijuana. Lockyer also underscored
the role of local law enforcement in upholding state, not
federal, law. The Court of Appeal rejected the County of San
Diego’s claim in San Diego v. NORML (2008) that California’s medical
marijuana laws are preempted by federal law, and the
California and United States Supreme Courts denied San Diego’s
requests for review.

States have recognized marijuana’s medical value and have either
passed laws through their legislatures or adopted them by initiative.

In support of the states that have taken responsibility for the
health and welfare of their people by implementing medical marijuana
laws, ASA is fighting for states’ rights to pass and enforce
their own laws, regardless of federal law.

++++++++++++++++++++++++++++++++++++++++

Become a Member of ASA!
Your contribution allows us to spend more time working for
patients and less time raising money. Your ongoing support is crucial
to our success! There are three ways to contribute:
1. Online: Visit www.AmericansForSafeAccess.org/Donate
2. By Phone: Call us toll-free at 1-888-929-4367
3. By Mail: Send a check or money order to:
Americans for Safe Access
1322 Webster Street, Suite 208
Oakland, CA 94612

green flag gina is all about dealer education