Here’s a decision that will keep criminal defense lawyers like me busy for a while.  The California State Supreme Court recently put marijuana use for medical purposes on the same plane as any other prescription drug.  This all goes back to Proposition 215, passed by the voters in the State of California in 1996, which allows people to grow and use marijuana if they are doing so for medical purposes.

The key to this ruling is that the Court held that not only can someone who is charged with a violation of the statute use their medical need as a defense at trial, but they can also vitiate the need for a trial by having these charges dismissed before the case goes that far.  There is still an open question as to how many marijuana plants an individual can grow and claim that they are being grown for one’s own medical use; however, the Court seems to indicate that up to 30 marijuana plants or so would be OK.  The fact that the Court did not rule on exactly how many plants a person could grow, may well lead to different rules in different counties; however, one of the goals of this ruling is to create a greater sense of uniformity throughout the state in the manner in which these cases are resolved, and I think it will.

In order to either win at trial or have one’s case dismissed, all the patient needs to do is to present a prescription or some sort of medical authorization with respect to the marijuana.  Clearly, the State Supreme Court felt strongly about this issue, as the ruling was unanimous.  It is hoped that this now six-year-old law has finally been clarified.

The bad news for medical marijana users, however, is that they are still not protected from federal prosecution.  Federal decisions hold that there are no medical exceptions to federal drug laws.  Fortunately, it is normally state police agencies who make arrests pertaining to the use and cultivation of marijuana, so this is one of those decisions that will really impact the way the law is implemented and will dramatically affect people’s lives. 

All of this stemmed from the case of Myron Mower.  Mr. Mower is diabetic, and he was convicted of several felony charges for possession and cultivation of a controlled substance, as thirty-one marijuana plants were found at his residence.  Mr. Mower contended that the marijuana had been extraordinarily beneficial for him in stimulating his appetite and in controlling his nausea, especially now that he is in what is called end-stage diabetes.  This ruling reversed Mr. Mower’s convictions.

I like this decision; however, like anything else, it is certainly subject to being abused.  I foresee many court hearings in the future as to what constitutes a valid prescription or authorization.  There are many in the drug community who will find doctors who are willing to write prescriptions, and I would not be at all surprised if the most nefarious of drug dealers show up with medical notes or prescriptions authorizing their use of marijuana, even in cases where it clearly looks like the cannabis is being grown for purposes of sale.  This may also lead to testimony, as to what type of examination the doctor did that led him to suggest or OK the use of marijuana as a court may have to determine the validity of the prescription.  While I see issues like this arising in litigation, I think that this is a major step in aiding those who really suffer from tremendous pain and have found relief from the use of marijuana.  There are many people who for years have claimed that marijuana is no worse for an individual than alcohol, the only difference is that alcohol is legal.  For those people, there day is rapidly approaching.



Charlie Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Unger, Danis & Grover, and a psychotherapist at the Foothill Centre for Personal and Family Development.  Mr. Unger writes a bimonthly column on legal and psychological issues.  He can be reached at or at (818) 244-8694