Dammit, Jim! I’m a Lawyer, Not a Doctor!

Earlier Friday it was brought to my attention that a doctor who recommends medical marijuana allegedly told his patient — my client — that “Rick Horowitz does not know medical marijuana law.”

Why a doctor would be practicing medical marijuana law — allegedly telling patients that what I told them is not true, and giving them what he thinks is the “correct” legal advice — is beyond me. Just as it would be illegal (not to mention unethical) for me to practice medicine in the State of California, so is it also illegal for doctors to practice law, unless perhaps the doctor in question also has a law license in addition to his medical license. (And this one doesn’t.)

The irony of the situation is that the client in question was one who knew better, because I obtained for him the exact result that he wanted in his case. ^[1]But he just bit his tongue, because he did not want to get into an argument with the doctor who was providing his medical marijuana recommendation.

Dismissals without even going to trial are like that — they frequently result in happy clients who think of me as a lawyer who does, in fact, know medical marijuana law.

And I get a lot of dismissals on medical marijuana cases. I’ve yet to have one actually go all the way to trial. In fact, because I’m “a criminal defense lawyer who knows medical marijuana law,” instead of a “medical marijuana lawyer,” I have even won dismissals in medical marijuana cases without ever mentioning the word “marijuana.”

As one of my medical marijuana clients wrote in an online review concerning my representation of her:

Mr. Horowitz displayed complete knowledge of the laws pertaining to California’s Medical Marijuana laws, as he explained in detail the specific laws and previous cases that pertained to my case. ^[2]To read more reviews from my clients, check my Testimonials page, which contains excerpts from Avvo.

That case involving felony possession for sale — among other charges — was another where I obtained a complete dismissal.

Frankly, I’ve been puzzled as to why I don’t have more medical marijuana clients contacting me than I do. But today’s revelation may explain it.

And what of the case about which the good doctor was criticizing my legal knowledge, offering (apparently) to substitute his own? 

Well, as I said, it was a case where I obtained the result the client wanted — a dismissal — although apparently not in a way of which the good doctor approved. This case was in another county, outside my usual practice area. It involved an infraction. Apparently the practice in that jurisdiction is to deem — somewhat contrary to law — that an individual who has a medical marijuana recommendation, but not a “medical marijuana card” issued by a county Department of Health, is not entitled to have his case dismissed without a trial.

Now I said, “somewhat contrary to law.” Why “somewhat”?

Because under the oldest of California’s medical marijuana laws — the Compassionate Use Act, or CUA — the law provided what we call “an affirmative defense” in court, but not a bar to arrest. Many interpreted this to mean that if you were a bona fide medical marijuana patient, you pretty much had to have a trial.

This blog post is not intended to be a medical marijuana treatise. If you want specific legal advice concerning your medical marijuana case, you should hire me — or someone else who knows medical marijuana law, which right now would mean “me, or the numerous Fresno attorneys who take such cases and then call me for advice on how to handle them.” However, the case of People v. Mower should put to rest the idea that you have to have a trial. ^[3]People v. Mower, 28 Cal. 4th 457, 122 Cal. Rptr. 2d 326, 49 P. 3d 1067 (2002). 

In particular, Mower states:

[W]e believe that section 11362.5(d) reasonably must be interpreted to grant a defendant a limited immunity from prosecution, which not only allows a defense at trial, but also permits a motion to set aside an indictment or information prior to trial. ^[4]Id. at 470, italics in original.

Presumably, it would also allow a motion setting aside a misdemeanor complaint, or an infraction, prior to trial as well.

Many courts — particularly Superior Courts for various counties in California — hold a belief, however, that the lower standard of such pre-trial hearings as a Preliminary Hearing in a felony case, or a Probable Cause Hearing (if one were held, which it usually isn’t) in a misdemeanor case means that the prosecution should be allowed to proceed notwithstanding this “limited immunity.” Part of the problem is the use of the word “limited,” which is almost always used as a way of saying “well, there might be super-rare cases where you get a dismissal sooner, but it is, as noted, limited, and therefore super-rare.”

As Mower shows, that’s not really the meaning of “limited immunity.” But, as I said, this isn’t meant to be a treatise; if you want the full explanation, you’ll have to hire me.

The Medical Marijuana Program Act (MMPA) goes beyond the Compassionate Use Act. Whereas the CUA only allows for “an affirmative defense,” the MMPA provides an actual bar to arrest in certain circumstances. In particular, California’s Health & Safety Code section 11362.71 states:

No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article.

However, the case of People v. Jackson, 210 Cal. App. 4th 525, 148 Cal. Rptr. 3d 375 (2012) appears to indicate that California courts will treat defenses under the MMPA similar to those of the CUA.

Because the defenses provided by the MMPA, like those set forth in the CUA, relate directly to the nature of the defendant’s conduct as opposed to collateral matters, those defenses only require that a defendant raise a reasonable doubt as to whether the elements of the defenses have been proven. ^[5]Id. at 533.

The Jackson court then went on to state:

In determining whether that minimal burden has been met, “the trial court must leave issues of witness credibility to the jury.” ^[6]Id., citing People v. Villanueva, 169 Cal. App. 4th 41, 49, 86 Cal. Rptr. 3d 534 (2008).

In other words, the Jackson court indicates that the jury (in a jury trial), or the judge (in a bench trial), or the magistrate (in an infraction case) will have the final say.

But there’s a bigger problem — most likely missed by even those who hold themselves out as “medical marijuana lawyers,” and certainly by doctors who unethically and illegally give legal advice to their patients — and this is that the bar to arrest provided by the MMPA appears to apply only to those who avail themselves of the cards issued by the Department of Health in the various counties. As noted above, California Health and Safety Code section 11362.71 bars the arrest of a “person” or “primary caregiver” who is “in possession of a valid identification card.”

Section 11362.765 of the California Health and Safety Code states that certain persons are not subject to “criminal liability.” Those certain persons include:

A qualified patient or a person with an identification card who transports or processes marijuana for his or her own personal medical use. ^[7]Cal. Health & Saf Code § 11362.71(b)(1).

A “qualified patient” is:

[A] person who is entitled to the protections of Section 11362.5, but who does not have an identification card issued pursuant to this article. ^[8]Cal. Health & Saf Code § 11362.7(f).

Of initial importance is to recognize — as California’s doctors (not being lawyers) apparently do not — that “an identification card issued pursuant to this article” and a “doctor recommendation” are not the same thing. In fact, a “doctor recommendation” is merely one useful element which a patient should have in order to obtain a Department of Health identification card.

More importantly, not being subject to “criminal liability,” unfortunately, is not the same as being immune from arrest. Again, California Health and Safety Code section 11362.71 says cardholders are immune from arrest in certain situations, but 11362.765  — which, by including non-card-holding “qualified patients,” is broader — only protects against “criminal liability.”

As the typical reaction of the courts noted above shows, protection from “criminal liability” does not guarantee that you won’t have to hire a lawyer, defend yourself through a preliminary hearing (if subjected to the normal felony charges), and potentially be held to answer by a fact-finder — jury, judge, or magistrate — at a trial. With a hopefully knowledgable Public Defender, or private attorney, rather than a doctor, at your side.

All of this brings us back full circle to the doctor’s alleged statement that “Rick Horowitz does not know medical marijuana law.”

The doctor’s statement was allegedly made because the way I approached the magistrate in the above case resulted in an agreement that my client would obtain a Department of Health card, return to court with it by himself (thus avoiding additional fees from me), and the case will be dismissed. Otherwise, the magistrate stated, my client would have to proceed to trial, the date for which had already been set. The magistrate stated his clear belief that my client was not entitled to a dismissal because he did not have the Department of Health card. (There was a fairly-strong hint there that my client wouldn’t be acquitted by that magistrate, as well.)

Although advised by me that the magistrate’s understanding of the law — that he had to have either a card, or proceed to trial — was almost certainly legally incorrect, my client opted for the sure-fire dismissal option. A trial would have cost him more money, and would not be guaranteed to end in acquittal, because the magistrate had already shown a disinclination to honor the law. (Remember, it was an infraction; hence, no jury trial.)

And yet the doctor — with all his legal training — allegedly tells my client that I don’t know medical marijuana law.

Let me tell you something, Doc. I’m not a doctor. I’m merely a lawyer. So while I have ten times the compassion for human beings that you do, some people would say I only have one-one-hundredth the smarts. After all, if I were as smart as you, I’d make more money, right? I’d be able to tell people that if their insurance wouldn’t cover the case, they’d just have to go to jail die, like you do, because I couldn’t do anything for them. I surely wouldn’t be going in on a Saturday to help someone who couldn’t pay any fee try to figure out how to avoid jai—oh, wait, I’m doing that tomorrow.

Well, at least I could tell them that in medical marijuana cases, they didn’t need any county-department-of-health-issued card, because “under the law” the physician recommendation works just as well. Like it did for the client around whose case this post centers. I could tell my “patients” that the dismissal their lawyer obtained didn’t matter — after all, as their medical marijuana doctor, I know that they didn’t need a dismissal. They would have won at trial. After all, they had “my” recommendation. And that’s as good as any state-issued card.

I could possibly also convince them that the “recommendation” that I made to them, which I said was good for one year, was in compliance with the MMPA — an acronym I’ve possibly never even heard — which is, after all, why I made it good for only one year. After all, I have to decide every twelve months whether marijuana is still justified to treat their cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. ^[9]See Cal. Health & Saf Code § 11362.5(b)(1)(A). I mean, just because marijuana is good for cancer patients one year, doesn’t mean it will still be good for those same patients the next year.

Well, okay, maybe I just need to collect additional fees, and having you pay each year for a renewal of your recommendation works out pretty well for that.

The law does not put an end date on a physician recommendation. Nothing in either the CUA, or the MMPA, requires that physicians “renew” their recommendation to you — ever. The MMPA (but not the CUA, since it isn’t subject to Department-of-Health oversight) requires that your Department-of-Health-issued card be renewed each year. But that card, which is different from your physician recommendation, does have to be renewed each year. ^[10]It is perhaps the case that the Department of Health will say your physician recommendation needs to be renewed each year, but there is actually no legal basis for this. No law requires it. It is equally reasonable to say that a physician recommendation, once given, continues to be valid until you die.

I believe it is because of that some defense attorneys (and possibly prosecutors and judges) erroneously believe that physicians must renew their recommendations each year. But, again, there is nothing in California’s medical marijuana laws that says so. Maybe it’s a good idea, but by putting a time-limit on the recommendation, doctors open up their patients to prosecution if they forget to renew the recommendation. Law enforcement looks at the recommendation and says, “Oops. Your recommendation has expired. You’re under arrest for continuing to grow (or possess, or transport, or buy/sell within the collective) marijuana.” It doesn’t matter that you might still be a cancer patient, still suffering symptoms alleviated by marijuana. The magical marijuana recommendation date, not required by law, has passed.

Equally interesting, every physician recommendation seems to come with a statement that the patient is “approved” for “95 mature plants,” or “99 plants,” or some other ridiculous stricture. Occasionally, a very conscientious doctor will give a recommendation allowing “30 plants.”

The law does not specify any numerical plant requirement. Statutory law specifies that the amount is what is for the “patient’s personal medical purposes.” ^[11]Cal. Health & Saf Code § 11362.5(d); People v. Kelly, 47 Cal. 4th 1008, 1013, 103 Cal. Rptr. 3d 733, 222 P. 3d 186 (2010). Judge-made case law gives the current “reasonably related to the patient’s current needs” formulation. ^[12]Kelly, supra, at 1013, citing People v. Trippett, 56 Cal. App. 4th 1532, 1549, 66 Cal. Rptr. 2d 559 (1997).

Doctors — who are not supposed to prescribe marijuana, ^[13]California doctors only recommend marijuana for medicinal use; they don’t prescribe it. probably because there is no consistency in levels of the medically-active compounds from one crop to another — frequently specify “95 mature plants,” if they are playing it safe, or “99 plants” if they want to go all out.

Where’d you get that magical number, Doc? Was that a medical decision, based upon the fact that every marijuana plant yields the same amount of medicine? I don’t know because — Dammit, Jim! I’m a lawyer, not a doctor! — but I doubt it. I know enough about biology, and marijuana, to know that the dosage of the medically-valuable components of marijuana varies not only from variant to variant (e.g., Indica versus Sativa, not to mention the sub-genuses), but depending upon whether the grow is somehow controlled (cloned), and/or tested in a lab, versus home-grown.

No, I think that magical number was arrived at because someone — possibly even a hillside lawyer — noticed that the feds didn’t used to get too excited unless a grow hit the 100-plant mark, at which the federal penalties used to ratchet up significantly. So to protect medical marijuana patients from federal attention, or excessive penalties should they get caught in a federal net, they suggested keeping the “dosage” under 100 plants.

Hence the “magic 99” number.

But, hey, what do I know? As I said, I’m a lawyer, not a doctor.

And unlike doctors, I know that I should leave medical decisions, such as whether, what, and how much to recommend, to doctors.

Now if only I could get doctors to leave the law to real lawyers.