A California state senator has introduced legislation that would let local school districts pursue policies to allow K-12 students with special needs or severe disabilities to use medical cannabis products on campus.
Senate Bill 1127, by Sen. Jerry Hill, D-San Mateo, would not permit smoking or “vaping” cannabis products at school, however.
Parents are currently required to remove their children from campus before administering cannabis-based oils, capsules, tinctures, liquids or topical creams, but SB 1127 would let the governing boards of school districts, county boards of education or charter schools to pass more permissive policies if they choose to do so.
SB 1127 would prohibit parents from administering medical cannabis products in a way that “creates a disruption to the educational environment or causes exposure to other pupils.”
It would also prohibit parents from leaving medical cannabis products on campus after they are administered.
The legislation would only permit on-campus use for students who have a recommendation from a physician to use medical cannabis under the Compassionate Use Act of 1996, more commonly known as Proposition 215.
The bill would not supersede Health and Safety Code 11357, which makes it an infraction to possess cannabis on school grounds except as provided by law.
It might be in conflict with Health and Safety Code 11361, however, which makes it a felony punishable by three to seven years in state prison for adults to give cannabis to minors, according to Sebastopol-based defense attorney Omar Figueroa, who specializes in marijuana law.
“Section 11357 starts off by saying ‘except as authorized by law,’” Figueroa said. “It’s an infraction if it’s not authorized by law, but since it’s authorized by law it’s not entrapping parents. This would not result in parents getting arrested or prosecuted.”
“Section 11361 — that’s a big problem,” Figueroa said.
Parents administering medical cannabis to their children on campus under the provisions of SB 1127, as it’s currently written, could be subject to criminal liability unless it includes a provision amending 11361 to include an exception for cannabis use that is authorized by other laws.
“The way it’s written there’s a risk of state prison, especially if you have a felony prior and I would not advise my clients to risk it,” Figueroa said.
As a practical matter, however, Figueroa said prosecutors typically wouldn’t waste their time on such a case, particularly in cases involving schools and school districts where policies allowing medical cannabis use on campus had been adopted.
“I think that’s an accurate statement for many counties,” San Mateo County District Attorney Steve Wagstaffe said. “That will vary with the 58 prosecutors around the state.”
When there’s a conflict between two state laws, however, the newer law typically overrides the older one, according to Wagstaffe.
Sen. Hill said that at this stage the bill has just been introduced, and if there’s a conflicting statute it can be addressed.
“We don’t want to create conflicts,” Hill said. “If there are some that exist then it’s our job as the bill moves through the legislative process to clarify so that there is no misunderstanding.”
“We want to make sure that these children are able to take this medicinally recommended product in a safe environment rather than out on the street,” Hill said.