EFFECTUATING THE MEDICAL CANNABIS DEFENSE IN CALIFORNIA

By Joseph A. Rogoway

The complexity and nuance of California’s medical cannabis laws make understanding the mechanics of asserting the in-court defense challenging. This complexity is driven by the interplay between the statutory regimes incorporated within Health and Safety Code section 11362.5 (Prop. 215; The Compassionate Use Act) and sections 11362.7-11362.83 (SB 420; The Medical Marijuana Program Act). Added to this conceptual venn diagram of medical protections are varying and often conflicting opinions from reviewing courts throughout the state. Examining each nuance of these laws is perhaps more appropriate for a reference manual. The purpose of this article is to assist the practitioner in gaining a basic understanding of the statutory immunities and affirmative defenses that are available for persons alleged to be involved in the lawful distribution of medical cannabis.

I. Statutory Construction

In order to really understand the utility of California’s medical cannabis protections in practical terms, the practitioner should begin with the Supreme Court of California’s landmark decision in People v. Mower (2002) 28 Cal.4^th 457. There, the Mower court unanimously ruled that: