There seems to exist rampant misinformation with respect to California medical marijuana laws, and I wanted to help clear the air and explain the extent of current CA medical marijuana law for non-residents. I find myself often arguing the position that California’s Proposition 215 had no limit on qualified patients or attending physicians with respect to residency. To begin, lets review the text of the law enacted by the voters in 1996, with relevant wording in bold:
Health and Safety Code §11362.5. Use of marijuana for medical purposes.
(a) This section shall be known and may be cited as the Compassionate Use Act of 1996.
(b)(l) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:
(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
(B) To ensure that patients and their primary care-givers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
(C), To encourage the 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.
(2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.
(c) Notwithstanding any other provision of law: no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.
(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.
(e) For the purposes of this section, “primary care-giver” means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.
When examining the law enacted by the voters on a plain reading, there is clearly no prohibition pertaining to non residents. Merely, the initiative explicitly protected seriously ill Californians, and physicians within this state (H&S 11362.5(b)(1)(A) and H&S 11362.5(c)). The proposition exempts qualified patients and primary care-givers from possession and cultivation laws for personal medical purposes. SB 420 was later enacted to exempt qualified patients from transportation laws within CA as well, and provides a codified threshold amount of at least 8 ounces and 6 plants. In studying the laws, it is apparent that the 1996 voters intended the medical marijuana law to apply universally.
The voter pamphlet for Proposition 215 from 1996 additionally makes zero reference to MMJ qualification applying to only California residents. There is no strong argument suggesting that Proposition 215 only applies to CA residents — and not one known CA appellate court decision has ruled otherwise. Notwithstanding, nearly the entire state medical marijuana industry is under the delusion that residency is a requirement to be a qualified patient.
So then… What’s Legal Under H&S 11362.5 (Proposition 215)?
This needs to be broken up into parts for simplicity.
(A) Non-CA, US Resident, CA Recommendation –> Definitely Legal
There is absolutely no doubt under that if you are a resident of the United States, and possess a valid recommendation from a California licensed doctor, you’re exempt from certain marijuana possession laws under both H&S 11362.5 (1996) and Senate Bill 420 (2003) within California.
(B) Non-CA, US Resident, Non-CA Recommendation –> Likely Legal
If you possess a written statement from your attending physician (licensed in any state), and are a legal resident within the United States, there is no reason why you shouldn’t qualify for exemptions in simple possession or cultivation under California law. Under 11362.5, there is no limitation to an attending physician; provided that the general expectation is that such is licensed within the jurisdiction of the United States of America. When a person fitting these circumstances shows up in court, that individual need only present the recommendation, and valid identification, and the trial clerk will verify with your doctor. If at all possible, consult a California physician for a 30-day recommendation.
Does this mean collectives and cooperatives could lawfully deliver medical marijuana to non-CA residents within the state?
SB420 does not limit qualified patients to be California residents, with exception to the voluntary state-issued identification card. If the qualified patient is in possession of a valid recommendation issued by a licensed physician within the jurisdiction of the United States, Proposition 215 seemingly covers such activities. SB420 retains the definition of qualified patient under H&S 11362.5, and H&S 11362.775 grants all qualified patients an exemption to the laws for collectively cultivating medical marijuana within the state of California.
California enacted Prop 215 in a year of Civil Rights based propositions hitting the ballot. The initiative was designed to allow, as far as California law is concerned, qualified patients from anywhere in the United States to come to California and qualify for the medical use of marijuana. Senate Bill 420 grants collective cultivation rights, allowing qualified patients who are out of state to obtain their needed medication by growers in California while in the state of California. When an out-of-state qualified patient, such as someone from Oregon, comes into the state of CA with an Oregon recommendation, that person (in this author’s opinion) has the same right to possess and cultivate marijuana under Proposition 215 as lawful residents.
There is ample evidence to suggest that out-of-staters can qualify for medical marijuana after consultation with a California physician. Thus, I advocate the quick end to the discrimination of such individuals by those in the production and distribution industry, and allow qualified patients from all walks of life to benefit from California’s Proposition 215 as the law is intended.
Then in 2016, let’s legalize so we can legally allow adults to smoke without the (legal) need for approval by a physician.