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How Prop. 215 Was Gutted From A Full Exemption To A Bogus "Affirmative Defense"


420 Staff
When the People of California wrote and passed Proposition 215, the Compassionate Use Act, it was intended to exempt patients from criminal prosecution. The Attorney General even said so when he wrote his Title and Summary to Prop. 215:

"Exempts patients and defined caregivers who possess or cultivate marijuana for medical treatment recommended by a physician from criminal laws which otherwise prohibit possession or cultivation of marijuana." ( Source: CA Secretary of State - Vote96 - Proposition 215 )

Nowhere in the official Title and Summary, nor in the text of the initiative, does it say anything about an affirmative defense, or any limits or restrictions. In fact, once a physician issues his recommendation, the only legal issue is whether or not the marijuana is being used for medical purposes or if it is being diverted to non- medical purposes. No matter how much marijuana a patient may have, the Compassionate Use Act is supposed to exempt them, unless it is being diverted into non-medical use.

It was the Lungren vs Peron case, that allowed Lungren to gut the Compassionate Use Act, forcing patients and caregivers to prove their right to possess and use marijuana, with the burden of proof on the defendant, using an "affirmative defense".

Although Lungren knew he had committed the state to his Title and Summary, which said patients and caregivers were "exempt," he was able to get the judge to rely upon the ballot arguments from our side, to claim that the CUA only provides a defense in court. Yet the judge ignores similarly extreme statements by our opponent that this was 'marijuana "legalization" and there would be "no restrictions" on how much or where you could grow.

Also, the judge claims, "The statutory language limits the patient's access to marijuana to that which is personally cultivated by the patient or the patient's primary caregiver on behalf of the patient. But that isn't what the CUA says at all. Just take a look at what the it actually says:

"( 2 ) Nothing in this act shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for non- medical purposes."

The CUA says nothing about amounts, only about diversion to non- medical purposes. It was this judge, led by the nose by Lungren, who decided that a patient can have "too much for personal use." So, according to this judge, you can legally possess marijuana -- unless the police decide you are possessing for sale, in which case your exempt status evaporates as soon as you are accused. What good is it being exempt, if a mere accusation removes that protection?

This decision also errors by weighing the ballot arguments with equal weight against the Title and Summary. This is clearly an error, since anyone can say whatever they want in the ballot argument, while the Title and Summary MUST be "a true and impartial statement of the purpose of any initiative." Below is the law that makes this so:

CAL. ELECTIONS CODE SEC. 9051: "Within 10 days after it is filed, the Attorney General shall provide and return to the Secretary of State a ballot title for the measure. The ballot title may differ from the legislative or other title of the measure and shall express in not exceeding 100 words the purpose of the measure. In providing the ballot title, the Attorney General shall give a true and impartial statement of the purpose of the measure in such language that the ballot title shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure."

Does the CUA provide an exemption for possession for sales? If you can legally possess something, that would imply the ability to sell it as well. Of course that isn't the case with prescription drugs, but then medical marijuana isn't a prescription drug, is it? The California Legislature took up this question, after the judge in Lungren vs. Peron said sales was not allowed, and passed SB 420 which DOES allow caregivers, MCDs, and members of cooperatives to be paid remuneration for their costs and time. So, if the CUA didn't authorize sales before, it does now and it is a fraud to charge a patient or caregiver with "possession for sales," when it is now legal for them to possess AND sell for medical purposes.

Sick, disabled and dying patients throughout California are still being raided by SWAT teams, arrested, jailed, humiliated, treated like criminals, bankrupted, children abducted by CPS and made even sicker, because of those who are still deliberately opposing this law, eleven years after the People of California voted to EXEMPT patients and caregivers from criminal penalties.

It is time to stop playing games with people's lives and uphold the Compassionate Use Act as it was written and passed by the People of California.

If you would like to read the decision in Lungren vs. Peron, you can find a copy at Chris Conrad's web site:

Peron Decision

Pubdate: Fri, 19 Oct 2007
Source: DrugSense Weekly (DSW)
Section: Feature Article
Website: DrugSense: Drug Law Reform
Author: Steve Kubby
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