Capitol Offenses

Attorney General Brown issues pot guidelines


by Dan Blackburn
Published August 21, 2008


California's top prosecutor last week dribbled out the first set of formal guidelines to help law enforcement interpret and apply medical marijuana laws. Attorney General Edmund G. (Jerry) Brown's final draft of his long-awaited rules for ensuring "the security and non-diversion of marijuana grown for medical use" is circulating among top state and local law enforcement officials. The new Justice Department guidelines are the first definitive words on the subject by a state attorney general, and are written nearly a dozen years after California voters approved Proposition 215, the "Compassionate Use Act."

The guidelines may create difficulties for many California storefront dispensaries of storefront marijuana.

The medical marijuana act, approved by voters in 1996, decriminalized cultivation and use by patients on a physician's recommendation. The act conflicted with federal law, leaving local law agencies left to interpret the act. The result was a lack of consistency in enforcement among different jurisdictions.

Brown's pronouncement is intended to accomplish three objectives: to "ensure" that medical marijuana goes only to patients and caregivers; to help law enforcement do its job uniformly; and to "help patients and caregivers… cultivate, transport, possess, and use marijuana under California law."

San Luis Obispo County Sheriff Patrick Hedges became a flashpoint recently for the controversy, following the prosecution and conviction of Morro Bay pot dispensary owner Charles Lynch on federal drug charges. Television star and comedian Drew Carey told Lynch's story in a sympathetic documentary on reason.tv. The week-plus trial concluded earlier this month in Los Angeles.

It was Hedges who tipped federal DEA agents about Lynch's dispensary. Sheriff Lynch also ordered a year-long undercover operation by his deputies and approved his deputies' participation in the dispensary's well-publicized.

When questioned about the cost of the investigation, he answered, "How do you place a value on a murder case investigation? You do it because it's the right thing to do."

The sheriff said the Lynch dispensary was not what voters authorized and was an abuse of the enabling act.

"I can't just allow the law to be flaunted," he said.

"Storefront dispensaries" like Lynch's have been controversial since the passage of the 1996 act.

Los Angeles County has hundreds of storefront dispensaries. Hermosa Beach, Manhattan Beach and Redondo Beach have all acted to prevent "storefront dispensaries" from opening in their cities.

Brown wrote in his guidelines, "Although medical marijuana `dispensaries' have been operating in California for years, dispensaries, as such, are not recognized under the law." Individuals who operate dispensary establishments "that do substantially comply with [the] guidelines… may be subject to arrest and prosecution under California law."

Brown notes that "California did not `legalize' medical marijuana, but instead exercised the state's reserved powers to not punish certain marijuana offenses when a physician" has prescribed its use.

Several other significant clarifications are incorporated in the attorney general's instructions, including one regarding quantities: "If a person has what appears to be valid medical marijuana documentation, but exceeds the applicable possession guidelines identified above, all marijuana may be seized. "

Ironically, a state court of appeal in May ruled that legislators erred when they capped the amount of pot a patient could possess because lawmakers do not have authority to amend a voter-approved initiative. Brown, who advocates "controlled" medical marijuana use, told the Los Angeles Times recently that he will challenge the ruling.

Also defined in the guidelines are rules for the lawful return of confiscated marijuana to patients. State law enforcement officers who handle controlled substances in the course of their official duties are immune from liability. ER


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