Wayman was charged with transporting marijuana (California Health & Safety code, section 11360), possession with intent to sell (section 11359), possession of concentrated cannabis (section 11357) and misdemeanor driving under the influence (DUI) and driving with a blood alcohol content of .08 or more (Vehicle Code, section 23152(a) and 23152(b)).

During the trial, a narcotics investigator opined that the items found in Wayman’s possession led to the inference that he was intending to sell them. Wayman presented evidence that it was for his own personal medical use. Wayman testified that he suffers from back pain and Dr. Elaine James recommended that he smoke pot; she authorized him to use it for medical reasons. Wayman further testified that the amount of pot he consumes varies with the extent of the back pain and seldom goes more than a couple of days without using the drug. His preferred method of ingestion is to cook it in food and eat it with meals.

Wayman attempted to explain the large quantity of pot found in his possession by stating that he had obtained it from a dispensary in Northern California a few days before his arrest. He paid two thousand dollars. He kept it in the car because his mother didn’t want him bringing it into the house. When he was pulled over by the police, Wayman said that he was on his way to his girlfriend’s house and had been drinking with friends earlier in the evening. He denied being under the influence of drugs.

Although Wayman admitted to having aspirations of starting his own medical marijuana delivery service some day, and had obtained some websites to that end, he insisted that he did not intend to sell the pot in his car and lacked commercial purpose.

A jury disagreed and convicted him of transporting marijuana and driving under the influence. He was found not guilty of possessing concentrated cannabis. Because of a jury deadlock, the intent to sell charge was dismissed. Wayman was placed on probation and ordered to spend six months in jail with credit for time served.

On appeal, Wayman claimed that the trial judge issued bad jury instructions regarding how someone can transport medical marijuana. The trial court advised the jury that transportation of pot is authorized for personal medical purposes when a doctor has recommended or approved of the use. The court also instructed that the amount must be reasonably related to the current medical needs. The jury was also told that they could consider whether the method, timing, and distance of the transportation was reasonably related to the patient’s current medical needs.

The government’s main argument in the Wayman case was that he wasn’t actually transporting the pot for medical purposes at the time he was pulled over – he was storing it there for future use. Wayman contended that the court should not have conditioned his right to transport the pot on his current medical needs since the law permits qualified patients to transport the drug without qualification as long as it is for his own personal use. There is no discussion of current medical needs in the statute.

The Court of Appeal disagreed with Wayman. Although California’s medical marijuana law does not mention transportation of pot, the law was designed to ensure that the seriously ill can obtain and use marijuana for medical purposes without threat of prosecution. The law protects only possession and cultivation. The right to transport was specifically excluded from the law and upheld in case law under People v. Young (2001). This ruling was in direct conflict with People v. Trippet (1997), where an appeals court had devised a test to determine when transport is lawful based on being reasonably related to the patient’s current medical needs.

Faced with the uncertainty of whether transportation is a crime, the California legislature later passed the Medical Marijuana Program (MMP) which specifically provides an affirmative defense to the crime of transporting marijuana. The California Supreme Court has since held that the Trippet test for current medical needs is still useful in determining whether transportation is lawful.

Wayman argues that the Trippet test is more restrictive than the MMP and thus unconstitutional. The Court of Appeals disagreed. The statute protects transportation of marijuana for personal medical use – the reason for the transportation must be for personal medical use. Allowing patients to transport medical marijuana at times when the transportation isn’t reasonably related to their medical needs would result in more pot being transported on the roadways. Instead, the laws are designed to provide patients with safe passage from the source to the place where they will ingest the substance. Had Wayman been leaving town for an extended vacation, the possession of four ounces of pot might fall under protection of California’s medical marijuana law. However, storing the pot in his car to appease his mother is not an activity protected by the law.

President Barack Obama, hounded by marijuana advocates during his campaign, indicated that he was opposed to the federal government raiding medical marijuana shops. At the time, Obama was quoted in Oregon’s Mail Tribune newspaper as saying “I’m not going to be using Justice Department resources to try to circumvent state laws on this issue.” In March 2009, Attorney General Eric H. Holder, Jr. seemingly indicated a shift in policy, according to a New York Times story. In essence, Holder said that the Justice Department’s enforcement policy would now be restricted to marijuana traffickers falsely masquerading as dispensaries, and “use medical marijuana laws as a shield.” Under the former Bush administration, federal agents raided marijuana distributors violating federal statutes even if they were, or appeared to be, in compliance with state laws. Specifically, Holder said that California dispensaries operating in accord with California law would not be an administration priority.

That didn’t end the raids, however.

In October 2009, the Justice Department told federal prosecutors in a three-page memo that they should not pursue medical marijuana users who comply with state laws. Despite the new policy, some medical marijuana users remain skeptical of the oversight of marijuana dispensaries due to a hodgepodge of regulations. But Bruce Mirken, of the Marijuana Policy Project in San Francisco, says “It is the biggest and most positive change in federal policy in medical marijuana in at least 30 years.”
There have also been efforts to legalize marijuana in California in 2009, with proponents of legalization saying it would benefit the state to the tune of $1.4 billion in additional revenue annually to the State Board of Equalization, and opponents decrying legalization as prone to abuse and an escalating number of younger patients. In 2007, California collected $100 million in sales tax revenue collected from hundreds of medical marijuana dispensaries. But while taxing marijuana (if the drug becomes legalized) would benefit the state, associated health care and monitoring costs in a state of some 15 million people would be very costly.

So, the state and federal laws seem to be at odds when it comes to medical marijuana use, and California, at least, entertains some initiatives toward legalization of cannabis.

Where did all this controversy begin and what’s been done to correct it?

Compassionate Use Act

Proposition 215, also known as the Compassionate Use Act of 1996 (CUA), the Medical Marijuana Initiative, was voted on by the people of the state of California and became effective in November 1996. In 2003, the state governor signed Senate Bill 420 into law, establishing the Medical Marijuana Program (MMP). The CUA is updated annually.

Prior to the CUA, it was illegal, under California law, for any individual, seriously ill or not, to cultivate or possess marijuana. CUA allows it, under certain medical conditions.

Medical Conditions Covered by CUA and MMP

Patients with the following conditions are covered by the CUA: AIDS, anorexia, arthritis, cancer, chronic pain, glaucoma, migraine and spasticity. In addition, CUA applies to “any other illness for which marijuana provides relief.” Language in the MMP clarifies the “serious medical condition” concept that qualifies persons to receive an ID card and use medical marijuana upon a physician’s recommendation. The MMP’s concept of “serious medical condition” includes: AIDS, anorexia, arthritis, cachexia (loss of weight, muscle atrophy, significant loss of appetite, fatigue, weakness), cancer, chronic pain, glaucoma, migraine, persistent muscle spasms (including those that are associated with multiple sclerosis or MS), seizures (including seizures associated with epilepsy), and severe nausea. The MMP further includes “any other chronic or persistent medical symptom that either1) substantially limits the ability of the person to conduct one or more major life activities as defined in the ADA or, 2) if not alleviated, may cause serious harm to the patient’s safety or physical or mental health.”

CA State Board of Equalization and Taxability of Medical Marijuana Transactions

California’s State Board of Equalization issued a special notice in 2007 confirming the state’s policy of taxing of medical marijuana transactions, and requiring a Seller’s Permit for businesses engaging in such transactions.

Medical Board of California

The Medical Board of California licenses, investigates and disciplines California physicians. Although California law prohibits punishing physicians for recommending marijuana to their patients for treatment of a serious medical condition, the Medical Board of California is permitted to (and does) take disciplinary action against physicians who do not comply with accepted medical standards when recommending marijuana to their patients. These standards include:

• Taking a patient history and conducting a good-faith examination of the patient
• Developing a treatment plan that includes objectives
• Providing informed consent, including discussion of any side effects
• Periodic review of the efficacy of the treatment
• Consultations, as necessary
• Maintaining proper records that support the decision to recommend use of medical marijuana

CA Attorney General Issues Specific Medical Marijuana Use Guidelines

In 2008, in an effort to minimize prosecution of individuals for cultivation and/or possession of marijuana for medical use, California Attorney General Jerry Brown issued specific guidelines. The 11-page document or directive, sought to help legitimate patients avoid arrest while also providing police and law enforcement officials the tools they needed to be able to distinguish legal medical marijuana operations from illegal ones and criminal traffickers.

The guidelines urged patients to apply for state-sanctioned medical marijuana ID cards, and advised police to recognize and accept them (once authenticated) as proof of medical need. Under the guidelines, which apply to not-for-profit collectives or cooperatives, the marijuana must be grown by the patients or caregivers, with fees limited to covering overhead and operating expenses.

A copy of the guidelines is available at http://www.safeaccessnow.org/downloads/AG_Guidelines.pdf

Further information about medical marijuana is located at the Medical Board of California Department of Consumer Affairs site.
American College of Physicians Position

A 2008 position paper from the American College of Physicians (ACP) “urges an evidence-based review of marijuana’s status as a Schedule I controlled substance to determine whether it should be reclassified to a different schedule…[and] should consider the scientific findings regarding marijuana’s safety and efficacy in some clinical conditions as well as evidence on the health risks associated with marijuana consumption, particularly in its crude smoked form” (Position 4, revised July 2008).

The ACP’s other positions:

• Support programs and funding for “rigorous” scientific evaluation of medical marijuana’s potential therapeutic benefits and publication of such findings (Position 1)
• Encourages the use of non-smoked forms of THC that have proven therapeutic value (Position 2)
• Supports the current process for obtaining federal research-grade cannabis (Position 3)
• “Strongly supports exemption from federal criminal prosecution; civil liability or professional sanctioning…for physicians who prescribe or dispense medical marijuana in accordance with state law…. ACP strongly urges protection from criminal or civil penalties for patients who use medical marijuana as permitted under state laws” (Position 5)

California – First, But Not the Last State to Allow Medical Marijuana

To-date, 13 states have enacted laws permitting medical marijuana use. Following California, Alaska, Washington and Oregon approved medical marijuana use in 1998 and Maine in 1999. Colorado, Hawaii and Nevada approved it in 2000, while Montana and Vermont gave it the nod in 2004 and Rhode Island in 2006. Michigan voters approved medical marijuana use in 2008. Laws, fees and possession limits vary.

Arizona passed a law in 1996 that allows physicians to prescribe marijuana (even though federal law prohibits it), and a 2003 Maryland law allows for medical use defense in court.

An additional 14 states have legislation or ballots pending (as of August 2009) that seeks to legalize medical marijuana use. These states are Alabama, Connecticut, Delaware, Illinois, Iowa, Massachusetts, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, and Tennessee. Petition drives are underway in Florida and South Dakota.

Is It Safe?

Clinical investigations of the therapeutic use of medical marijuana continue to find evidence that cannabis has disease-combating capabilities. Of thousands of papers published, today researchers are focusing more on the ability of cannabis to modify disease. Of interest are moderating autoimmune disorders such as MS, inflammatory bowel disease and rheumatoid arthritis, as well as treating neurological disorders such as amyotrophic lateral sclerosis (Lou Gehrig’s disease) and Alzheimer’s. Anti-cancer properties of cannabis are also getting their fair share of attention.

But that is not to say there are no concerns surrounding medical use of marijuana. A 1995 World Health Organization report said “There are no recorded cases of overdose fatalities attributed to cannabis…” Investigators in 2008 found no higher incidence rate of serious adverse events associated with medical cannabis use.

Marijuana contains more than 60 chemical compounds, known as cannabinoids. THC (delta-9 tetrahydrocannabinol), which is the main psychoactive ingredient in marijuana, can produce a variety of physiological and euphoric effects that may be, to some individuals, harmful. Cannabidiol (CBD) is the second most abundant cannabinoid, but it produces no psychoactive effects.

Pregnant or nursing mothers, adolescents, patients with a family history of mental illness, those with Hepatitis C, decreased lung function, or history of heart disease or stroke may be at greater risk of experiencing adverse effects from marijuana.
Patients in California and elsewhere should seek counsel with their physician as to whether or not medical marijuana is advised or recommended, particularly as to its safety and appropriateness for the individual.

What Happens Next?

Estimates vary on the number of medical marijuana patients in California, but it’s safe to say it exceeds 200,000 (a 2007 estimate). The number of medical marijuana dispensaries in Los Angeles alone is said to exceed 1,000 – and many of them are the target of police and DEA raids because they are for-profit organizations. It remains to be seen whether the Justice Department’s new policy will have any effect on medical marijuana dispensaries who comply with California state law, but several proponents of state reform say California should “re-codify Proposition 215 and take a stand against federal raids,” and train more law enforcement officers on the medical cannabis issue.”