Wednesday, March 25, 2015

Police Took My Medical Marijuana. How Can I Get it Back?

Marijuana remains illegal in California, but "qualified patients" may have defenses to certain marijuana-related crimes if they can prove that their doctor has recommended the use of marijuana to treat a serious medical condition.

Taken together, Prop. 215 (The Compassionate Use Act) and SB-420 (The Medical Marijuana Program Act) provide a lot of protections for Californians who use medical marijuana. Unfortunately, I encounter many people who are often surprised to learn that those protections don't go as far as they had imagined.

If you're found in possession of a significant amount of marijuana or if you are caught cultivating, you should expect to be arrested.  You should also expect that the police will seize your medicine and your growing equipment.  They will claim that the property is contraband (because, as stated above, marijuana is still illegal).  They will disregard your doctor's note.

Eventually, the DA might decline to pursue criminal charges against you, or your attorney might successfully petition the court to dismiss those charges by proving your status as a qualified medical marijuana patient.  Even after you have been exonerated of any criminal wrong-doing, though, the police might still refuse to return your medicine and growing equipment.

That's where I step in.

There is a process in California for obtaining a court order, signed by a judge, directing the local police department to give you back your property if you can prove that you are the lawful owner of the property and the property is not contraband or evidence in a pending criminal case.  The property at issue can be a car, a computer, a weapon, a pile of cash, or even your medical marijuana.  Of course, when marijuana is involved, the process is a little more complicated, but don't be discouraged.  Our firm has experience in fighting on behalf of medical marijuana patients.

A petition for the return of medical marijuana in California is called a "Kha" motion, named for the case in which the argument was first applied.  In order to prevail on your Kha motion, you and your attorney will need to convincingly demonstrate several things.

First, we must show that you are a qualified patient and that you are lawfully entitled to possess marijuana.  This means proving that your doctor has actually recommended the use of medical marijuana to treat some serious medical condition.  If you went to some shady little medical marijuana clinic and spoke to a doctor via Skype, it may be difficult to issue a subpoena for this doctor and to secure his presence in court.  Even if we are able to track him down and drag him into court, he may simply testify that he doesn't remember you or that he cannot vouch for the authenticity of your recommendation.  This is not very helpful.

The best way to prove your status as a qualified patient is to obtain a state-issued MMP ID card. These photo ID cards are administered and distributed by your local county's Health Department. To get yours, you must take your doctor's recommendation down to the local health department, along with any other medical records related to your condition and pay a fee.  The county agency will confirm that the recommendation is legitimate and they will issue you a photo ID card.  Once you have this government-issued card, you should be able to easily prove that you are a qualified medical marijuana patient, even if your doctor is not willing to testify on your behalf.  A valid state-issued MMP card looks like this:

I talk to a lot of people who possess "cards" issued by their doctors.  These doctor-issued cards are absolutely worthless unless they actually came from your county's Health Department.  Don't be duped into paying your medical marijuana doctor for a photo ID card.  If your "card" looks like this, you should follow the steps described in the previous paragraph:

Once you have established that you are a qualified medical marijuana patient, the next issue that will probably arise is the question of how much marijuana you are legally entitled to possess.  By law, you may possess as much as you need for your personal use.  Obviously, this quantity will vary by user.  If you grow your crops outdoors and you only get one harvest per year, you might need a larger amount to last until your next harvest.  Similarly, someone who eats their marijuana might need more than someone who smokes it.  Your state-issued card will indicate the quantity that you are allowed to possess.

After we prove that you are a qualified patient and that you are authorized to possess or cultivate the quantity that was found in your possession, we must prove that the marijuana is not evidence in any pending criminal case.  Even if you are allowed to possess or grow a certain amount, you could still be criminally liable for illegally selling / distributing that marijuana or engaging in some other marijuana-related crime (like manufacturing hash oil).  Talk to your attorney about any potential risks involved with petitioning for the return of your medicine.  By testifying on your own behalf, you could incriminate yourself by admitting that you possessed more than your prescribed limits or that you were involved with illegal distribution.

If your marijuana is destroyed by police during its seizure or its storage, you may also be entitled to compensation for its fair value.

The fight for medical marijuana rights in California has been long and hard-fought.  For years, seriously ill patients were subjected to imprisonment for using the only medicine that granted them relief.  We've come a long way since 1996.  Medical marijuana continues to gain acceptance and patients are winning more protections with each courtroom victory.  Unfortunately, many law enforcement agencies refuse to recognize this progress.  Some police departments are still trained to believe that "there is no such thing as medical marijuana".  They will ignore your doctor's recommendation and seize your property.  They will cut down your crops, arrest you and take you to jail, understanding that most people simply don't have the time or the resources to assert their rights.  Too often, they're right.  Don't let them get away with this.  If police are running roughshod over your rights, hold them accountable.  Take a principled stand, demand the return of your property and let them know that it's time to stop abusing medical marijuana patients in California.

If police have seized your medical marijuana, call our office for a free attorney consultation. (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Marijuana Lawyer