Patient Rights
Why It’s Important to Get a Recommendation
The decision to medicate with cannabis can be an intensely personal one, or one that may require discussion with your family, friends, or a physician. Any conversation about using cannabis should take into consideration your patient rights. It is important to protect yourself, and the easiest and safest way to access the world of medical cannabis is to get an official physician’s recommendation. A recommendation is similar to a prescription, in that it is recognized by cannabis dispensaries and California law enforcement as your “passport” to use and carry medical cannabis. You can acquire your recommendation from your family doctor, or from a doctor’s office that is specifically set-up to provide evaluations.
Safe and Legitimate Access
A doctor's recommendation represents more than a professional opinion that cannabis is the right choice of medicine for you. It can save you from potential legal prosecution. Luckily, the majority of local law enforcement in the Bay Area has a more progressive attitude towards legitimate medical cannabis that patients receive from a cannabis collective. While California law enforcement does not recognize your right to consume street-bought or black market cannabis, it does lawfully allow you to carry cannabis you have acquired in a dispensary using your doctor’s recommendation.
Always be cautious though. Unfortunately, under United States Federal Law, you can still be detained and prosecuted for simply being in possession of cannabis acquired anywhere, legally or not. If you are ever pulled over while driving, and questioned about your visible bag of cannabis in the car, promptly and politely present a copy of your recommendation to the officer. This will often result in a respectful and understanding reaction. Do remember however, that officers do not look kindly on the consumption of medicine while operating a vehicle. It is wise to store your medicine in the trunk of your car, out of reach, and out of sight. As long as your medicine is properly labeled and stored, and you have a valid medical cannabis recommendation in your possession, you should be able to avoid most legal trouble in California.
The National Organization for the Reform of Marijuana Laws (NORML) provides the following guidelines for protecting yourself:
1. Keep your medicine properly stored and out of site. This must again be reiterated as one of the best ways to avoid an incident with a law enforcement official. Although police officers must obtain a warrant before they can conduct a search, anything in plain sight is subject to confiscation, and can lead to arrest. A “roach” in the ashtray, a pipe or baggie on the coffee table, or a joint being smoked in public commonly lead to arrests.
2. If you are uncomfortable with being searched, you do not have to consent. Many individuals arrested on marijuana charges could have avoided that arrest by exercising their Fourth Amendment rights. If a law enforcement officer asks for your permission to search, it is usually because: 1) there is not enough evidence to obtain a search warrant, or 2) the officer does not feel like going through the hassle of obtaining a warrant. If you do consent to a search, you waive your constitutional protection, and the officers may search and seize items without further authorization. If you do not consent to a search, the officer must either release you, or officially “detain” you, and attempt to get a warrant. The fact that you refuse to consent does not give the officer ground to obtain a warrant or further detain you.
An officer can obtain a search warrant only from a judge or magistrate, and only upon showing “probable cause”. “Probable cause” requires an officer to articulate information that would cause a reasonable person to believe that a crime has been committed. The important thing to reiterate is that you do not have to consent to a search.
If an officer asks to search you, your possessions, or your car, you can respond:
I do not consent to a search of my [person, baggage, purse, luggage, vehicle, house, blood, etc.] I do not want to answer any questions. If I am not under arrest, I would like to go now (or be left alone).
3. You do not have to answer questions without your attorney present. Whether arrested or not, you can exercise the right to remain silent if you feel uncomfortable or pressured. Anything you say to law enforcement officers, reporters, cell mates, or even your friends can be used as evidence against you. You have the right to have an attorney present during questioning.
4. Determine if you can leave. You may terminate an encounter with officers unless you are being detained under police custody or have been arrested. If you cannot tell whether you may leave, you can ask officers, “Am I under arrest or otherwise detained?” If the answer is, “No,” you may leave.
An officer can temporarily detain you without arresting you if he has “reasonable suspicion” that you are involved in criminal activity. An officer must be able, at a later time, to articulate to a judge, objective facts that would have caused a reasonable person to suspect that you were involved in criminal activity at the point you were detained. Also, the officer may perform a “pat down” or “frisk” you during the detention, if he has reasonable suspicion that you are armed. However, an officer may only reach into your pockets if he pats something that feels like a weapon.
When an officer attempts to question or “frisk” you, you can politely say: “I do not consent to this contact, and I do not want to answer any questions. If I am not under arrest, I would like to go now.”
If arrested, you can again refuse a search of any kind, and refuse to answer any questions. At this point you can insist on speaking to an attorney as soon as possible.
5. Do Not Be Hostile, Do Not Physically Resist! There are times when individuals politely assert their rights and refuse to a search, but the officers nonetheless proceed to detain, search, or arrest them. In such cases, it is important to remain calm and not physically resist. Rather, you should reassert your rights as outlined above. On the flip side, you may be surprised at how pleasant your encounter is with Law Enforcement, once you present your patient documentation. So respect the rule of law, and always carry your doctor recommendation with you!;
Proposition 215
“The California Compassionate Use Act was enacted by the voters and took effect Nov. 6, 1996 as California Health & Safety Code 11362.5. The law makes it legal for patients and their designated primary caregivers to possess and cultivate marijuana for their personal medical use given the recommendation or approval of a California-licensed physician.
SB420, a legislative statute, went into effect on January 1, 2004 as California H&SC 11362.7-.83. This law broadens Prop. 215 to transportation and other offenses in certain circumstances; allows patients to form medical cultivation “collectives” or “cooperatives”; and also establishes guidelines or limits as to how much patients can possess and cultivate. Legal patients who stay within the guidelines are supposed to be protected from arrest.”