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  Calif. Appeals Court Tosses Medical Pot Caps
Posted by CN Staff on May 23, 2008 at 18:35:45 PT
By Mike McKee, The Recorder 
Source: Recorder 

medical CA -- A California appellate court ruled Thursday that state legislators overstepped their bounds in 2003 by limiting the amount of marijuana that patients could possess for medical purposes.

The unanimous opinion by Los Angeles' 2nd District Court of Appeal said legislators acted unconstitutionally when they passed a statute that effectively amended Proposition 215 -- also known as the Compassionate Use Act of 1996 -- to allow patients a maximum 8 ounces of dried pot and six mature or 12 immature marijuana plants at any given time.

"The Legislature ... cannot amend an initiative, such as the CUA, unless the initiative grants the Legislature authority to do so," Justice Richard Aldrich wrote. "The CUA does not grant the Legislature the authority to amend it without voter approval."

Justices H. Walter Croskey and Patti Kitching concurred.

Joseph Elford, chief counsel of Oakland, Calif.-based Americans for Safe Access, liked the sound of the ruling, but said he was somewhat confused because the California Supreme Court held in 2006's People v. Wright, 40 Cal.4th 81, that a per-patient limit on marijuana isn't a cap, but rather a constitutionally sound threshold. In other words, he said, eight ounces is merely a first threshold, with more pot available to patients if their doctors say they need it.

"It might confuse things because [the appellate court says] those numbers are caps, and they are not," said Elford, who was not a party to the suit. "But at the same time, to the extent they are telling law enforcement that they can't use the ... quantities as caps by which to harass or convict medical marijuana patients, it's a good thing."

In Thursday's ruling, the 2nd District ordered a retrial for Patrick Kelly, who was sentenced to three years of probation after jurors in 2006 found him guilty of possessing about 12 ounces of dried marijuana and pot plants. Kelly had a doctor's approval to use the substance for a variety of ailments, including hepatitis C, chronic back problems and cirrhosis.

The appeal court said the prosecution erred during arguments at trial by referencing a cap set forth in the Legislature's statute.

"The CUA does not quantify the marijuana a patient may possess," Aldrich wrote. "Rather, the only 'limit' on how much marijuana a person falling under the act may possess is it must be for the patient's 'personal medical purposes.'"

The court pointed out in a footnote, however, that the ruling doesn't give patients "a free pass" to possess as much pot as they desire. Instead, the amount should be "reasonably related" to a patient's medical needs.

Aldrich noted that the Legislature recognized in 2004 it had overreached the year before by instituting a cap. Sen. John Vasconcellos, D-Santa Clara, who authored the unconstitutional amendment, got a bill passed that removed the cap language. However, Gov. Arnold Schwarzenegger vetoed the bill because he didn't like the fact that it removed "reasonable and established quantity guidelines," the justice wrote, quoting the governor's comments from back then.

"That may be a valid concern," Aldrich conceded. "Nevertheless, it is a concern that cannot be addressed by the Legislature acting without the voter's [sic] approval."

Los Angeles-based Supervising Deputy Attorney General Lawrence Daniels, who handled the case, was out of the office and couldn't be reached. His co-counsel, Deputy AG Ana Duarte, declined to comment.

Source: Recorder, The (CA)
Author: Mike McKee, The Recorder
Published: May 27, 2008
Copyright: 2008 ALM Properties, Inc.
Contact: http://tinyurl.com/yua3l5
Website: http://www.law.com/jsp/ca/index.jsp

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Comment #16 posted by Dirtmover on May 26, 2008 at 11:58:11 PT
About time!
I won't say what jurisdiction we're in, but our doctor confronted out county's DA about the FEDERAL annual limit of 6 pounds per year.

The result? Six pounds, and six growing female plants, each at any given time.

(And the police don't come to our house with automatic weapons, anymore.)

[ Post Comment ]

 
Comment #15 posted by OverwhelmSam on May 25, 2008 at 07:33:16 PT
There's Too Many Laws
Many should be repealed immediately. The police have become at least a harrassment upon the average American Citizen and the public rightfully do not trust them. But until we call for police officers to go to jail for abuse of authority, more of the same can be expected.

[ Post Comment ]
 
Comment #14 posted by JohnO on May 24, 2008 at 20:52:30 PT:

And that is why I ignore most laws anyway,
eventually people get bored of micromanaging your life, why give them any satisfaction in the first place, just ignore them. Laws are made to interfere with those who let it.

[ Post Comment ]
 
Comment #13 posted by aolbites on May 24, 2008 at 17:18:16 PT
The Land of the Free'ish'
@#@$%!!

The Land Of The Free .. The Home of The Manicled Patient.

at least the one good thing about the Coming Great Depression, the Govt is going to be even more broke than 'usual' and will NOT be allowed to continue the persecution. (cause the enablers will be voted out, ...for at least 15-20 years.)



[ Post Comment ]

 
Comment #12 posted by NikoKun on May 24, 2008 at 11:16:54 PT
Just as it should be. Props to that court!
Since when should a patient be forcefully limited on how much medicine they can use? The law has no business, deciding how much a patient can have.

It's their medicine, they should be allowed to use/have as much of it as they need.

And besides, with an herbal medication like this, there is little way in which one can judge how much someone would need over a period of time. Everyone needs different amounts, and potency can very greatly between types and patient needs. An overall regulation on this... Just doesn't work, and serves no point, other than to please prohibitionists.

The patient's right are more important, than what some moralist jerk-offs think...

[ Post Comment ]

 
Comment #11 posted by Treeanna on May 24, 2008 at 09:56:11 PT
You are correct
In fact, it was 3.5" pots with several tiny seedlings in them (soon to be thinned of course).

The cop is on tape saying "Be sure to look close so you can count the ones that are just starting to come up"

Then they go on about how each plant (without determining sex, etc) is going to produce a pound of finished "product", blah blah.

[ Post Comment ]

 
Comment #10 posted by Hope on May 24, 2008 at 07:42:04 PT
12 immature marijuana plants
I see a foam or cardboard egg carton...a twelve egg carton. Some dirt in each little divot. I see tiny sprouts.

It may have been more "sophisticated" than that... but oh... how many times has that been exactly what it really was?

It causes me pain. Real pain. But I know Joyce is happy. So that's what makes it right and ok?

Right, Joyce?

[ Post Comment ]

 
Comment #9 posted by Treeanna on May 24, 2008 at 07:33:55 PT
Cops always call the numbers in SB240 "limits"
They also conveniently forget subsection (b) of that statute dealing with plant numbers which says you can have more if the doctor has approved it.

This is an important ruling to curb abuse. Here's an example from my police report:

"Due to the amount of marijuana plants are above the 12 immature marijuana plants or the 6 mature mature marijuana plants per SB 420, the marijuana plants were taken as evidence."

[ Post Comment ]

 
Comment #8 posted by runruff on May 24, 2008 at 07:33:37 PT:

Oregon referendum.
This week I found out that our state legislatures in Salem have been busy tweaking our voter enacted laws. Why can't they just get it that democratic republic means government controlled by the people not vise versa?

I was talking to a rep from the OMMP Office and she said the starting Jan. 1st. this year the legislator made it more difficult to obtain a Med Mj Script. This goes against the law voted on by the people.

Chasing the rabbit huh?

"That which is not just is not law."-William Lloyd Garrison

[ Post Comment ]

 
Comment #7 posted by Hope on May 24, 2008 at 07:07:52 PT
Thank you, Sam.
I did enjoy it! (Smiling ten miles wide.)

You do me good. I can't help but love you. Thank you.

[ Post Comment ]

 
Comment #6 posted by OverwhelmSam on May 23, 2008 at 21:33:57 PT
Hi Hope
Enjoy It:

http://www.youtube.com/watch?v=GdDxz2bkfhE&NR=1

[ Post Comment ]

 
Comment #5 posted by Hope on May 23, 2008 at 21:22:49 PT
GCW and other Coloradans
I hope you are all ok. That was a bad storm up there.

[ Post Comment ]
 
Comment #4 posted by OverwhelmSam on May 23, 2008 at 21:18:56 PT
Round and Round weGo
This article, LOL

Like running a rabbit to ground. If you chase long enough and hard enough, the rabbit just quits. I love this strategy, because the rabbit rarely knows that it is being intentionally worn out.

Round and Round

http://www.youtube.com/watch?v=a5gMeXz2YMw

[ Post Comment ]

 
Comment #3 posted by FoM on May 23, 2008 at 20:26:51 PT
Amount
How can anyone know what a person needs? Cannabis is not a man made drug but an herbal medicine. Sometimes with herbal medicine you might need more and then later on less and sometimes none at all. They always try to make cannabis like a pill.

[ Post Comment ]
 
Comment #2 posted by mykeyb420 on May 23, 2008 at 20:17:22 PT
soooooo
Is my medicine RE -legal again??

yet?

ever??

[ Post Comment ]

 
Comment #1 posted by kaptinemo on May 23, 2008 at 18:54:23 PT:

Yep, just as Prop215 DIDN'T say
Read it. Nothing in there about limits. Damn prohibs keep telling us to respect the law while they twist, bend, warp and otherwise contort it out of cognizance from the original meaning...all the while attempting to grab unwarranted powers for themselves.

But not this time, prohibs...not this time. The judge's gavel came down squarely on your heads. As it should have. Score one for the people!

[ Post Comment ]


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