Journal of the California Cannabis Research Medical
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
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
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
drafted the complaint, which cites numerous violations of the California
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
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
and get some action.