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Autumn 2005
O'Shaughnessy's
Journal of the California Cannabis Research Medical Group

California Resumes Issuing ID Cards to MMJ Users

By Ellen Komp

After the Supreme Court decision in Gonzalez v. Raich, Oregon’s health department briefly suspended their state medical marijuana ID card program and then reinstated it upon legal advice from their attorney general. Similarly, in California on July 8, State Health Director Sandra Shewry announced her office would suspend Cali-fornia’s fledgling ID card program pending legal review.
“ In light of a recent Supreme Court decision, I am concerned about unintended potential consequences of issuing medical marijuana ID cards that could affect medical marijuana users, their families and staff of the California Department of Health Services (CDHS),” Shewry said.
In May, CDHS began pilot testing a voluntary identification card and registry system outlined in state law SB420 in three counties: Amador, Del Norte and Mendocino. Only 123 cards had been issued and the pilot testing was scheduled to be completed at the end of July with statewide rollout to follow.
The Drug Policy Alliance and the ACLU’s Drug Policy Office in Santa Cruz wrote a letter to Governor Schwarzenegger threatening to sue if Shewy did not reinstate the program. Leaders of the Marijuana Policy Project, American for Safe Access, California NORML and WAMM (Woman’s Alliance for Medical Marijuana) all called for the program to resume.
On July 18, DHS issued another press release stating it had re-instated the program after receiving legal advice from the State Attorney General that said operating the pilot program would not aid and abet marijuana users in committing a federal crime.
“We believe the federal government cannot enforce federal criminal laws against state officials who merely implement valid state law,’’ Lockyer deputy Jonathan Renner wrote in an eight-page letter to Shewry’s legal office.
“ In a case that presented an issue similar to DHS’s current question, the Ninth Circuit held that California doctors who recommend that their patients use marijuana are not guilty of aiding and abetting or conspiracy under federal law,” Renner wrote. That case, Conant v. Walters, holding that doctors could not be prosecuted for recommending medical marijuana, was allowed to stand by Bush administration officials, who allowed the deadline to appeal the case to the U.S. Supreme Court to expire.
“ A unilateral decision not to comply with state law, on the grounds that it may be prohibited by federal criminal law, without first receiving the guidance of an appellate court, is barred by the California Constitution,’’ Renner wrote, referring to Article III, Section 3.5 of the state’s constitution.
Shewry directed staff of the California Department of Health Services (CDHS) to resume operations, and the reform community declared victory. “California’s reinstatement of the card program squarely confirms that state medical marijuana laws across the country remain completely valid and in force,” said Allen Hopper, an attorney with the ACLU’s Drug Law Reform Project. “Patients can breathe a sigh of relief today, and we applaud the Attorney General’s prompt attention and resolution of this issue.”
Dampening the enthusiasm was the news that CDHS will be modifying the ID card application to inform applicants that possession of marijuana remains a federal crime and information provided by them could be used for federal prosecution. In addition, CDHS will ask the three counties that have issued state ID cards to notify all card-holders of their risk for federal prosecution.
Federal authorities have said they do not intend to prosecute individual medical marijuana users, and Department of Health Services spokesman Ken August told the San Francisco Chronicle there has been no demand for the state to supply information from the ID card program. “Not so far,’’ he said.
Alliance Executive Director Ethan Nadelmann explained to the Los Angeles Times, “It was always understood that the medical marijuana ID system would not provide a protection against federal arrests. The whole point of the program was to provide protection against arrests by state law enforcement and to make it easier for law enforcement authorities to enforce the law.”
ASA’s Steph Sherer pointed out on KZYX radio in Ukiah that, as with the San Francisco program, ID cards will contain no identifying information such as patients’ and caregivers’ names and addresses and the state will not collect that information. However, each county in the program will collect such information and the state’s guidelines for counties suggest they keep the information on file for one year.

“Why should I have to register, like a sex offender, just to use my medicine?” asked one patient in Humboldt county.

Many rank-and-file medical marijuana users have misgivings about the card program. “Why should I have to register, like a sex offender, just to use my medicine?” asked one patient in Humboldt county.
Karen O’Keefe, legislative analyst at the Marijuana Policy Project, responded that unlike sex offenders’ registries, California medical marijuana ID cards are voluntary. “Many patients and their advocates believe that these voluntary medical marijuana cards can be helpful at preventing police harassment,” said O’Keefe by email. “Cards are far easier to verify than non-standardized written recommendations and law enforcement officers tend to be less likely to wrongfully arrest or seize medicine from patients with cards. For this reason, many patients choose to obtain them.”
At the time of the launching of the pilot program, ASA Legal Director Kris Hermes said, “We welcome this ID card system, but are concerned that law enforcement be well-informed that legal patients and caregivers are not required to obtain one, and should not be subject to harassment and seizure of their medicine if they don’t choose to sign up.”
Attorney Bill Panzer of Oakland said that as long as a patient cultivates less than 100 plants or possesses less than 100 kilos of marijuana, potential federal sentences are fairly minimal, and it is rare if ever that the federal government prosecutes cases carrying less than a 5-year mandatory minimum sentence. With federal prosecution comes the possibility of civil forfeiture proceedings against people’s homes.
The question of ID cards has been a bone of contention since a statewide panel comprised of law enforcement officials, patients and activists was convened to implement Proposition 215. Law enforcement officials advocated for a card, which was not required by the voter-approved initiative. As a compromise, a voluntary card program was codified in SB420, which also enacted last-minute cultivation and possession limits and other restrictions, as well as specifically exempting medical marijuana from state laws against transportation of cannabis. Officials of the California Highway Patrol long held that CHP would honor only state-issued cards, but broadened their policy to accept doctors’ recommendations after Americans for Safe Access filed a class action suit on behalf of patients who had their medicine seized.
On September 10, Judge O’Brien ruled in Los Angeles Superior Court against caregiver Richard Davis, who is challenging SB420 on constitutional grounds, precisely because the ID card program is voluntary. “The ‘voluntary’ program does not take away any protections of the CSA,” the court ruled. “It merely eases the overseeing of the laws relating to marijuana use.” Davis is appealing the ruling. (See http://www.ccrmg.org/journal/05spr/chp.html#komp for background.)

Sonoma County announced it would charge a whopping $80 yearly fee for its cards

Meanwhile, counties are starting to issue state ID cards. Sonoma County announced it would charge a whopping $80 yearly fee for its cards, and San Francisco is planning to quadruple its fee to $50/year starting November 9.
More alarmingly, SF DPH plans to start retaining all documentation provided by persons who obtain ID cards for up to one year, in accordance with the new state guidelines. Current SF DPH policy is to return all paperwork to the applicant after verifying physicians’ recommendations.
According to Daniel Abrahamson, Director of Legal Affairs at the Drug Policy Alliance (Oakland), San Francisco Supervisor Ross Mirkarimi and the acting director of the Department of Public Health have agreed to host a town hall meeting about the issue at a future date.

 

O'Shaughnessy's
O'Shaughnessy's is the journal of the CCRMG/SCC. Our primary goals are the same as the stated goals of any reputable scientific publication: to bring out findings that are accurate, duplicable, and useful to the community at large. But in order to do this, we have to pursue parallel goals such as removing the impediments to clinical research created by Prohibition, and educating our colleagues, co-workers and patients as we educate ourselves about the medical uses of cannabis.
 
SCC
The Society of Cannabis Clinicians (SCC) was formed in the Autumn of 2004 by the member physicians of CCRMG to aid in the promulgation of voluntary standards for clinicians engaged in the recommendation and approval of cannabis under California law (HSC §11362.5).

As the collaborative effort continues to move closer to issueing guidelines, this site serves as a public venue for airing and discussing these guidelines.

Visit the SCC Site for more information.