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Law Enforcement Doesn’t Know Medical Cannabis Law

Posted by Joseph Tully | Jun 12, 2015

Say that you're a police officer. You're serving a warrant upon someone growing ‘medical' marijuana.

You roll your eyes at the term ‘medical' marijuana.

This is what you, your supervisor, and your fellow officers laugh about. Upon serving the warrant – where you and your buddies get to dress up in SWAT gear, point guns at people, and cut down that infernal weed – you find the homeowner had 99 plants and two doctor recommendations for 40 plants each. You further find $15,000 cash and text messages on the phone where the ‘medical' grower was plotting to sell of marijuana at $1,000 a pound.

Open and shut case, right? This guy isn't following the law, he's a criminal, right?

Not so fast. First off, medical marijuana, like any other crop, is subject to normal crop loss – not every plant that is planted will grow and produce. Any farmer of anything will tell you that normal crop loss is between 10%-33%. That means the 99 plants really should be counted more like 67-98 plants. If the person was a bad farmer or it was their first time, it could be even less. Usually, law enforcement does not do any testing on the crops to see if there is mold or mites or anything else that could damage the crops. So, the two people allowed to grow 80 plants together could very well be within the law and especially so under the reasonable doubt standard.

Next, there's the $15,000 cash. Under California law, Health & Safety § 11362.765, people with doctor's recommendations can interact in a number of ways regarding medical marijuana, including a grower selling it to a buyer as long as there is no profit. That means that the text messages between the grower and the other party would be perfectly legal as long as both had doctor recommendations.

Next, consider how much a 99-plant garden costs: add up all of the costs of the clones, water, nutrients, fertilizers, and dirt. Then, add up a reasonable compensation for all the hours, factoring in skill, in growing the garden. With all of these costs, $15,000 can easily be accounted for. What about the fact that money is cash? Number one, cash isn't illegal and number two, many growers sell their overages to medical marijuana dispensaries and federal rules essentially force dispensaries to work exclusively in cash.

The bottom line is, many in law enforcement, don't know or don't care about the law. A lot of people this summer and this fall will be arrested at gunpoint, taken to jail, and charged with multiple felonies which carry prison time EVEN THOUGH THEIR GROW IS ENTIRELY LEGAL. Even though this situation is legal, for the innocent defendant to be cleared, the jury has to follow the law and not automatically do what the cops say or fall for the DA's dirty tricks and smear campaign. This means that the defense attorney has to somehow pick a jury that isn't already biased just because the defendant is in a courtroom charged with several felonies. Oftentimes too, judges will give rulings or signals to the jury which convey bias against a defendant. Thus, this innocent grower in full compliance with the law would be forced to spend thousands in bail money as well as defense fees if they don't want to take a deal and become a convicted felon not to mention wanting to avoid a jail or prison sentence.

About the Author

Joseph Tully

Founding Partner, Criminal Law Specialist Our founding attorney, Joseph Tully, is sought out for his expert legal advice throughout California. With over 20 years of experience as a criminal lawyer, in 1000+ felony and other cases, Tully served as felony trial counsel as a public defender before...