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Autumn 2005
Journal of the California Cannabis Research Medical Group

CHP to Follow State Law

The California Highway Patrol issued an “Update on Medical Marijuana Enforcement Policy” August 22 directing officers not to confiscate marijuana from documented medical users in possession of eight ounces or less (and in some cases, more).
The new policy was drafted with input from the attorney general and the governor’s office. It comes in response to a suit filed in February by Americans for Safe Access on behalf of patients whose marijuana had been seized by the CHP.

The new CHP policy recognizes that a letter of approval from a doctor is as valid as a state-issued i.d. card

The CHP policy revision is a major victory for California medical marijuana users. County sheriffs and city police forces are now expected to revise their own policies regarding confiscation of medical marijuana. Agencies that don’t will face legal challenges, says Kris Hermes of ASA.
The new CHP policy recognizes that a letter of approval from a doctor is as valid as a state-issued i.d. card in establishing a medical user’s authenticity. Officers coming upon marijuana during a traffic stop are advised that if the amount “is within the state limits designated under SB 420 (eight ounces of dried marijuana, or the plant conversion, and no more than six mature or 12 immature marijuana plants) the individual is to be released and the marijuana is not to be seized. The state (SB 420) limit of eight ounces does not apply if there is a higher limit in the locality in which the individual is stopped. Authorized local limits supercede the state limit.”

ASA received 457 complaints by phone from Californians whose cannabis had been seized during encounters with law enforcement.

Over the past year ASA received 457 complaints by phone from Californians whose cannabis had been seized during encounters with law enforcement. More than a quarter of the confiscations had been made by CHP officers, according to Hermes, who along with staffer Elliott Caldwell fielded most of the calls.

There was a recurring pattern: a routine traffic stop, an officer asking “Do you have any drugs in the car?,” the confident citizen producing proper paperwork, and the officer saying it didn’t apply because of federal law, then citing or arresting them and confiscating their herb.

A confiscation victim named Jason Fishbain, who was referred to ASA by Dale Gieringer of Cal-NORML, obtained the CHP’s written policy authorizing confiscations. With this in hand, ASA decided to sue. Attorney Joe Elford drafted the complaint, which cites numerous violations of the California Constitution and seeks, among other things, an injunction against confiscation of marijuana from documented patients who possess an amount allowable under state law. Gov. Arnold Schwarzenegger, Attorney General Bill Lockyer, and CHP Commissioner Mike Brown were named as co-defendants.

Soon after the Raich decision, which came down June 6, Lockyer issued a “Bulletin to All California Law Enforcement Agencies” advising that “Cali-fornia’s Compassionate Use Act is not preempted by the federal Controlled Substances Act as a result of the decision in Raich... therefore the use of medicinal marijuana under state law is unaffected by that decision. Accordingly, California state and local peace officers may not refuse to abide by the provisions of California’s Compassionate Use Act on the basis that this Act conflicts with federal law.”

It remained to be seen whether the CHP, which reports to the governor, would comply with Lockyer’s directive. Says Joe Elford, “The CHP didn’t change their policy until their opposition to the motion for a preliminary injunction was due. They didn’t fold easily. The fact that they did ultimately fold is going to send a clear signal to other law enforcement that it’s not a position worth upholding. It’s no more constitutional for the Ukiah sheriff’s office to seize marijuana without probable cause to believe that a crime has been committed than it is for the CHP.”

Elford said that law enforcement agencies that don’t follow the CHP precedent will “get hit with lawsuits, too... The LAPD is on our radar screen.”

Credit is due Jason Fishbain, who exposed the CHP’s illegal policy, and to ASA —the staffers who handled the calls and the organizers, Steph Sherer and Hilary McQuie, who recognized the need for an infrastructure that would enable rank-and-file medical marijuana users to express their needs and get some action.


O'Shaughnessy's is the journal of the CCRMG/SCC. Our primary goals are the same as the stated goals of any reputable scientific publication: to bring out findings that are accurate, duplicable, and useful to the community at large. But in order to do this, we have to pursue parallel goals such as removing the impediments to clinical research created by Prohibition, and educating our colleagues, co-workers and patients as we educate ourselves about the medical uses of cannabis.
The Society of Cannabis Clinicians (SCC) was formed in the Autumn of 2004 by the member physicians of CCRMG to aid in the promulgation of voluntary standards for clinicians engaged in the recommendation and approval of cannabis under California law (HSC §11362.5).

As the collaborative effort continues to move closer to issueing guidelines, this site serves as a public venue for airing and discussing these guidelines.

Visit the SCC Site for more information.