Medical Marijuana - Right to Possess or Cultivate Marijuana

Medical Marijuana Section 11362.5 of the California Health and Safety Code establishes the rights of those who wish to possess or cultivate marijuana for medical purposes. Called the Compassionate Use Act it grants to people, as well as their primary caregivers, the right to be treated by a physician for serious medical conditions through the use of marijuana.

A primary caregiver is a person who assumes responsibility for the housing, health, or safety of a person who is permitted to possess and cultivate marijuana for medical purposes, that relationship must be established and continuing, and be independent of the administration of medical marijuana.1  As such a primary caregiver may lawfully possess and cultivate marijuana for the personal medical use of their patient.2

The conditions treated can include cancer, anorexia, AIDS, chronic pain, glaucoma, arthritis, migraine, or other conditions that the use of marijuana is of therapeutic value.3  The act requires the recommendation or approval of a licensed physician. These terms have been interpreted to mean that a physician may recommend the use of marijuana, or may approved the request of a patient to treat a condition with marijuana.4

The California Supreme Court in People v. Mower (2002) 28 C.4th 457, held that the prosecution must prove beyond a reasonable doubt that a person did not have medical approval for the cultivation and use of marijuana. Essentially, that means a person who testifies that they had medical approval, if believed by a jury, is sufficient to support an acquittal unless there is evidence that establishes beyond a reasonable doubt that it is not true.

No physician may be “punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.”5  The primary caregiver of a person with medical approval for the cultivation and use of marijuana also may not be prosecuted criminally where acting to benefit the person who has medical approval.6

However where a person is on probation for illegal cultivation of marijuana, and the terms of that probation include that the person obey all laws along with a condition to not possess or use marijuana, it has been held such conditions of probation are valid since it remains a violation of federal law and it is reasonably related to the underlying offense.7  However, where the underlying offense is for something other than a drug related offense it has been held that a probation term requiring a person to obey all laws could not be violated under the theory that possession of marijuana violates federal law if the act is one protected by the medical marijuana laws.8

It has also been held that while the medical marijuana law is an affirmative defense at trial that does not prevent police from exercising a search warrant to search the residence of a person who has a physician’s approval to cultivate and possess marijuana.9  Also the fact a person has medical approval does not prevent a cop from detaining, frisking or searching their car when the cop smelled marijuana coming from the car.10





1 Section 11362.5(e) of the California Health and Safety Code; People v. Mentch (2008) 45 C.4th 274
2 Section 11362.5(d) of the California Health and Safety Code
3 Section 11362.5(b)(1)(A) of the California Health and Safety Code; People v. Tilehkooh (2003) 113 C.A.4th 1433, 1440
4 People v. Jones (2003) 112 C.A.4th 341; Section 11362.5(d) of the California Health and Safety Code
5 Section 11362.5(c) of the California Health and Safety Code
6 Section 11362.5(d) of the California Health and Safety Code
7 People v. Bianco (2001) 93 CA 4th 748, 751
8 People v. Tilehkooh (2003) 113 CA 4th 1433, 1445
9 People v. Fisher (2002) 96 CA4th 1147
10 People v. Strasburg (2007) 148 CA 4th 1052