BILL ANALYSIS Ó
AB 2465
Page 1
Date of Hearing: April 17, 2012
Consultant: Jesse Stout
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2465 (Campos) - As Amended: February 24, 2012
As Proposed to be Amended in Committee
SUMMARY : Makes medical cannabis patient and caregiver
identification cards mandatory, and requires medical cannabis
collectives to keep copies of members' identification cards.
Specifically, this bill :
1)Changes the California Department of Public Health's (DPH)
Medical Marijuana Program (MMP) identification cards from
being voluntary to mandatory for all patients and caregivers.
2)Requires that medical cannabis collectives, cooperatives,
dispensaries, operations, establishments, and providers keep
available at all times copies of the identification cards for
each person to whom they provide cannabis.
EXISTING LAW :
1)States that the People of the State of California hereby find
and declare that the purposes of the Compassionate Use Act of
1996 are as follows:
a) To ensure that seriously ill Californians have the right
to obtain and use cannabis for medical purposes where that
medical use is deemed appropriate and has been recommended
by a physician who has determined that the person's health
would benefit from the use of cannabis in the treatment of
cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma,
arthritis, migraine, or any other illness for which
cannabis provides relief.
b) To ensure that patients and their primary caregivers who
obtain and use cannabis for medical purposes upon the
recommendation of a physician are not subject to criminal
prosecution or sanction.
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c) To encourage the Federal and State governments to
implement a plan to provide for the safe and affordable
distribution of cannabis to all patients in medical need of
cannabis. İHealth and Safety Code (HSC) Sections
11362.5(b)(1)(A) to (C).]
2)States that nothing in this section shall be construed to
supersede legislation prohibiting persons from engaging in
conduct that endangers others, nor to condone the diversion of
cannabis for nonmedical purposes. İHSC Section
11362.5(b)(2).]
3)Provides that, notwithstanding any other provision of law, no
physician in California shall be punished, or denied any right
or privilege, for having recommended cannabis to a patient for
medical purposes. İHSC Section 11362.5(c).]
4)Defines a "primary caregiver" as the individual designated by
a patient who has consistently assumed responsibility for the
housing, health, or safety of that person. İHSC Section
11362.5(e).]
5)States that existing law, relating to the possession and the
cultivation of cannabis, shall not apply to a patient, or to a
patient's primary caregiver, who possesses or cultivates
cannabis for the personal medical purposes of the patient upon
the written or oral recommendation or approval of a physician.
İHSC Section 11362.5(d).]
6)Requires DPH to establish and maintain a voluntary program,
for qualified patients to apply for identification cards, and
county health departments to issue identification cards to
qualified patients and their caregivers. İHSC Sections
11362.71(a) and (b)].
7)Provides that persons with valid identification cards shall
not be subject to arrest for possession, transportation,
delivery, or cultivation of cannabis, absent evidence of
fraud. İHSC Section 11362.71(e).]
8)Provides that patients and caregivers may possess and
cultivate an amount of cannabis reasonably necessary for the
patient's current medical needs, notwithstanding any limits
set by the Legislature that impermissibly amend the
Compassionate Use Act. İPeople v. Kelly (2010) 47 Cal.4th
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1008, 1043.]
9)Requires a person who seeks an identification card to pay a
fee and provide to the county health department the person's:
name, proof of residency, written doctor's recommendation,
doctor's name and contact information, caregiver's name and
duties, and patient's and caregiver's government-issued photo
identification card. İHSC Section 11362.715(a).]
10)Requires county health departments to issue serially numbered
identification cards to patients and caregivers containing: a
unique user identification number, an expiration date, the
county health department's name and telephone number, photo
identification of the cardholder, and a toll-free DPH
telephone number enabling state and local law enforcement
officers to immediately verify the card's validity. İHSC
Section 11362.735(a).]
11)Prohibits state or local law enforcement officers from
refusing to accept an identification card unless the officer
has reasonable cause to believe that the card is being used
fraudulently or its information is false or fraudulent. İHSC
Section 11362.78.]
12)Provides that qualified patients, persons with valid
identification cards, and their designated primary caregivers
who associate in order collectively or cooperatively to
cultivate cannabis are not subject to criminal liability on
that basis. İHSC Section 11362.775.]
13)Prohibits medical cannabis collectives who possess,
cultivate, or distribute cannabis from being located within a
600-foot radius of a school, and authorizes cities and
counties to further restrict the locations of medical cannabis
collectives. (HSC Section 11362.768.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Since the
implementation of Proposition 215 and subsequent legislation
(SB 420, Vasconcellos), the abuse of medical marijuana by the
criminal element has been prevalent. The ability of law
enforcement to address the problem has been hampered by the
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vagueness of the statute. The medical marijuana
identification card program is voluntary and documents
provided to law enforcement upon request are easily forged.
Furthermore, there is no system to identify which medical
marijuana is being legally grown at which location.
Cultivators are allowed to grow on behalf of patients, but
neither party is required to register the location of the
cultivation, making it nearly impossible for law enforcement
to ascertain whether or not the cultivation is being done
legally. This bill requires medical marijuana users to
register with the Department of Public Health for a medical
marijuana card. Furthermore, it requires co-operatives to
keep copies of the medical marijuana cards of all medical
marijuana users for which they are growing marijuana on the
premises."
2)Background on Current Medical Cannabis Law : California voters
passed Proposition 215, the Compassionate Use Act (CUA), in
1996. The CUA prohibits prosecuting Californians who have the
oral or written recommendation of their doctor and those
patients' caregivers for growing or using cannabis. The
Legislature sought to clarify this initiative in 2003 with SB
420 (Vasconcellos) Chapter 875, Statutes of 2003, the Medical
Marijuana Program Act (MMPA). The MMPA set limits on the
amounts of cannabis to be legally grown and possessed, and
created a voluntary identification card that patients and
caregivers can obtain that additionally protects them from
arrest. In 2010, the California Supreme Court ruled in People
v. Kelly (47 Cal.4th 1008, 1043) that the part of the MMPA
limiting amounts of cannabis was unconstitutional as that part
amends a voter initiative. Additionally, in 2005 the U.S.
Supreme Court ruled in Gonzales v. Raich (545 U.S. 1) that the
Federal Government can enforce cannabis prohibition despite
state medical cannabis laws.
Now, Californian patients who obtain a physician's oral or
written recommendation are protected from prosecution for
possessing or cultivating an amount of cannabis reasonably
related to their current medical needs, as are those patients'
caregivers. Patients and caregivers who obtain a state MMP
identification card from their county health department are
protected from arrest and prosecution for possessing,
transporting, delivering, or cultivating cannabis. Patients
and caregivers who engage in these activities remain liable
for federal arrest and prosecution, and those who operate
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collectives face frequent federal enforcement actions.
3)Effects of This Bill : This bill makes the medical marijuana
identification card system, which is currently voluntary and
has always been voluntary, mandatory and, therefore,
criminalizes a patient who does not register under the MMP and
makes that patient liable for arrest and prosecution even if
his or her physician has recommended that patient use
cannabis. This bill also requires medical cannabis dispensing
collectives to retain copies of the identification cards of
all patients and caregivers they serve.
4)These Effects Are Likely Unconstitutional : In People v.
Kelly, both the defendant and the Attorney General argued that
a law placing a greater burden on cannabis patients than the
Compassionate Use Act (CUA) did is an unconstitutional
amendment of the initiative. The Supreme Court agreed: "In
view of the case law recited in part IV.A and B-which is, in
turn, consistent with the history of article II, section 10,
subdivision (c) recited in part IV.D.2-we conclude that
section 11362.77, by imposing quantity limitations upon
'qualified patients' and 'primary caregivers,' amends the CUA.
Under the CUA as adopted by Proposition 215, these
individuals are not subject to any specific limits and do not
require a physician's recommendation in order to exceed their
limits; instead they may possess an amount of medical
marijuana reasonably necessary for their, or their charges',
personal medical needs." İKelly (2010) 47 Cal.4th 1008,
1043].
If this bill passes and a prosecution is litigated, the Supreme
Court can as easily rule that by imposing a mandatory duty to
register upon patients and caregivers, this bill amends the
CUA. By the same reasoning that patients and caregivers "are
not subject to any special limits," they are not subject to
any special obligation to register with the state government,
let alone inform the state of whether or where they intend to
cultivate cannabis.
5)This Bill Would Undermine the Intent of the Voters : The
voters who approved the CUA endorsed the drafters' intent "to
ensure that patients and their primary caregivers who obtain
and use cannabis for medical purposes upon the recommendation
of a physician are not subject to criminal prosecution or
sanction." (HSC Section 11362.5.) By creating additional
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hurdles to the legal protection offered by the CUA, this bill
runs afoul of the voters' intent. This bill would "subject to
criminal prosecution or sanction" those patients who have a
doctor's recommendation but do not obtain a state MMP
identification card.
This bill's provision requiring collectives to keep on-hand
copies of patients' identification cards also undermines the
voters' intent. The initiative states its intent to protect
patients and caregivers from criminal prosecution. Medical
cannabis remains prohibited federally, and the Federal
Government has raided hundreds of California's medical
cannabis collectives since voters passed the CUA. İAmericans
for Safe Access, Obama Report Card (April 29, 2011);
.]
If collectives are required to keep patients' identification
cards, federal law enforcement agencies that raid collectives
will soon gain access to identifying information for thousands
of Californian patients, increasing patients' exposure to
federal criminal prosecution and undercutting the voters'
intent to protect patients.
6)Related Legislation and Litigation May Conflict with This
Bill : AB 2312 (Ammiano), pending hearing by this Committee
today, overhauls California's medical cannabis regulatory
structure by creating a new Board of Medical Marijuana
Enforcement (BMME). The BMMC would be tasked with, among
other things, adopting regulations for the control of cannabis
cultivation, and developing related forms and identification
cards. AB 2312 supersedes this bill by taking the MMP out of
DPH's administration.
The California Supreme Court has recently granted review in
several cases related to the rights of medical cannabis
patients and dispensaries: Pack v. City of Long Beach (review
granted Jan. 18, 2012, S197169), City of Riverside v. Inland
Empire Patient's Health and Wellness Ctr. (review granted Jan.
18, 2012, S198638), and People v. G3 Holistic (review granted
Jan. 18, 2012, S198395). All of these cases deal with the
legality of local rules regarding the operation and location
of dispensaries and cultivation sites. Since the Supreme
Court will soon rule on the legality of regulations governing
dispensaries, this bill may be premature.
7)Argument in Support : None submitted.
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8)Argument in Opposition : According to Americans for Safe
Access , "This legislation violates the prohibition on
legislative amendments to voter initiatives in Article 2 of
the California constitution. The state legislature may not
add any additional requirements for immunity as a medical
cannabis patient beyond those approved by the voters in 1996 .
. . .
"Despite Assemblymember Campos's desire for an accurate count of
medical cannabis patients in the state, mandatory registration
is an inappropriate strategy for gathering this information.
Many legal patients and their primary caregivers fear legal
consequences because the federal government still considers
medical cannabis use illegal, and some law enforcement
officials in California continue to harass patients and
confiscate their medicine. Furthermore, medical cannabis
patients still face pervasive discrimination in employment,
child custody, housing, and access to health care."
9)Related Legislation :
a) AB 2312 (Ammiano) establishes a uniform statewide
regulatory system for regulating and controlling medical
cannabis, and establish the BMME within the Department of
Consumer Affairs to administer and enforce medical cannabis
laws. AB 2312 is scheduled to be heard in this Committee
today.
b) AB 1975 (Halderman) requires the Department of Pesticide
Regulation to develop guidelines to enforce state pesticide
regulations on medical cannabis cultivation. AB 1975 is
pending referral by the Assembly Rules Committee.
c) AB 1300 (Blumenfield), Chapter 196, Statutes of 2011,
authorizes local governments to adopt ordinances regulating
the location, operation, or establishment of medical
cannabis dispensaries.
d) SB 847 (Correa) would have prohibited medical cannabis
collectives from being located within 600 feet of a
residential zone and authorized cities and counties to
enact different standards for collectives' distances from
residential zones. SB 847 was vetoed.
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10)Prior Legislation :
a) AB 2650 (Buchanan), Chapter 603, Statutes of 2010,
prohibits any medical cannabis collective from being
located within 600 feet of a school, and authorizes local
governments to further restrict dispensaries' locations.
b) People v. Kelly (2010) 47 Cal.4th 1008, found
unconstitutional SB 420's restriction on the amount of
cannabis a patient may possess and cultivate, and found
that patients and caregivers may possess and cultivate an
amount of cannabis reasonably necessary for the patient's
current medical needs.
c) AB 2743 (Saldana), of the 2007-08 Legislative Session,
would have stated that it is the policy of California that
its agencies and agents not cooperate in federal raids and
prosecutions for cannabis related offenses if the target is
a qualified patient. AB 2743 died on the Assembly's
Inactive File.
d) SB 420 (Vasconcellos), Chapter 875, Statutes of 2003,
established a voluntary registry identification card system
for patients and their caregivers, and limited the amount
of cannabis patients and caregivers may possess.
e) SB 847 (Vasconcellos), Chapter 750, Statutes of 1999,
established the Marijuana Research Act of 1999 and provided
that the Regents of the University of California, if they
elect to do so, may implement a three-year program, the
"California Marijuana Research Program", under which funds
would be provided for studies intended to ascertain the
general medical safety and efficacy of cannabis and, if
found valuable, to develop medical guidelines for the
appropriate administration and use of cannabis.
f) Proposition 215, of the November 1996 General Election,
prohibits prosecution for the possession and cultivation of
cannabis by a patient or a patient's primary caregiver with
a physician's written or oral recommendation or approval.
REGISTERED SUPPORT / OPPOSITION :
Support
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Peace Officers Research Association of California (Sponsor)
Opposition
Americans for Safe Access
California Attorneys for Criminal Justice
California NORML (National Organization for the
Reform of Marijuana Laws)
California Teamsters
Drug Policy Alliance
Marijuana Policy Project
United Food & Commercial Workers Western States Council
Analysis Prepared by : Jesse Stout / PUB. S. / (916) 319-3744