Climbing Pot Mountain
Medical Marijuana users face persecution from local law enforcement
By Richard Rosen
As an attorney who has been defending medical marijuana patients in Monterey County for 15 years, I was extremely surprised to read the article here two weeks ago describing local law enforcement as "thoughtful, forward thinking people who appreciate nuance and exhibit common sense" with medical marijuana ("Sticky Stuff," Jan 20-26).
The truth is that most Monterey County police departments, and the district attorney, have een extremely hostile to the medical marijuana law ever since it was passed. The police departments have essentially ignored the law. They continue to arrest qualified patients, ignore their doctors' recommendations, confiscate their medicine and refer the cases to the district attorney for prosecution. The district attorney, who should be rejecting these cases, instead files criminal charges against documented patients, forcing innocent people to fight it out in court. The judges will eventually dismiss the cases, but only if the patient is willing to put up a fight.
Monterey County is one of the worst in the state for medical marijuana patients. Almost every county north of Monterey is more compliant with state law and more understanding of the needs of the patients. The very fact that so many lawful, documented medical marijuana patients have to hire me as a lawyer should tip you off to the fact that something is very wrong here.
The only medical marijuana dispensary that ever dared to open in this county was quickly declared a "nuisance" and ordered to close. In 15 years, no other dispensary has ever been allowed in Monterey County.
In 1996, California voters passed the Compassionate Use Act, legalizing the use of marijuana for medical purposes. Now, 14 states have medical marijuana laws. Although the state laws conflict with some federal laws, the federal government now recognizes and allows all 14 states to have medical marijuana laws without federal interference.
When local police claim that there is "confusion" about the law, they are laying a smokescreen to conceal their personal disapproval and to create an excuse not to follow it. There is no real confusion about the California law. It has been on the books for 15 years. It's been to the Supreme Court and back. It was re-affirmed by the Legislature in 2003. Go online and take a look at California Health and Safety Code sections 1136.5-11362.9.
The police promote confusion when they say things like "a doctor's certificate is only a recommedation" or "you are not legal unless you have a state I.D. card." The law is exactly the opposite. The doctor's recommendation is not just "a recommendation." It is the only documentation required [sec. 11362.5(b)(1)].
The state I.D. card is never requied [sec. 11362.71(f)]. The reason the police push the state I.D. card is because it forces the patient to file his confiential medical records with the state [sec. 11362.715(a)(2)]. Few people sign up for the state I.D. card because it is not required and because it si a huge invasion of privacy.
When they say that the laws and regulations "vary by county," that is another smokescreen. The California medical marijuana law is exactly the same for every county. This is a state-wide law. Some cities use local zoning regulations to keep dispensaries out, but the law that protects legitimate patients is uniform throughout the state.
What varies from county to county is the attitude of the police and prosecutors. Monterey County is unfortunately a throwback.
If a patient has a recommendation, the local police demand to see an I.D. card. If the patient has a card, the police demand medical records. If there is any doubt, the police make the arrest and seize the medicine.
I laughed when I read that prosecutors say: "We are not in the habit of going behind the doctor's recommendation." That is exactly what they have been doing in court for 15 years.
The police have tremendous political power. When the district attorney and the judges are up fro election, they know the most important endorsement they can get comes from the police. So, when the police want to pretend that the medical marijuana law does not exist, most DAs and many judges go along with the charade.
It is time for the law enforcement establishment of Monterey County to start following all the laws, not just the laws they like. Once they do, the citizens of Monterey County will begin to enjoy the same protections that their neighbors do.
Editorial appeared in the Monterey Coast Weekly.