Journal of the California Cannabis Research Medical
California Resumes Issuing
ID Cards to MMJ Users
By Ellen Komp
After the Supreme Court decision in Gonzalez v. Raich,
health department briefly suspended their state medical marijuana ID
card program and then reinstated it upon legal advice from their attorney
general. Similarly, in California on July 8, State Health Director
Sandra Shewry announced her office would suspend Cali-fornia’s
fledgling ID card program pending legal review.
In light of a recent Supreme Court decision, I am concerned about unintended
potential consequences of issuing medical marijuana ID cards that could
affect medical marijuana users, their families and staff of the California
Department of Health Services (CDHS),” Shewry said.
In May, CDHS began pilot testing a voluntary identification card and
registry system outlined in state law SB420 in three counties: Amador,
Del Norte and Mendocino. Only 123 cards had been issued and the pilot
testing was scheduled to be completed at the end of July with statewide
rollout to follow.
The Drug Policy Alliance and the ACLU’s Drug Policy Office in
Santa Cruz wrote a letter to Governor Schwarzenegger threatening to
sue if Shewy did not reinstate the program. Leaders of the Marijuana
Policy Project, American for Safe Access, California NORML and WAMM
(Woman’s Alliance for Medical Marijuana) all called for the
program to resume.
On July 18, DHS issued another press release stating it had re-instated
the program after receiving legal advice from the State Attorney General
that said operating the pilot program would not aid and abet marijuana
users in committing a federal crime.
“We believe the federal government cannot enforce federal criminal laws
against state officials who merely implement valid state law,’’ Lockyer
deputy Jonathan Renner wrote in an eight-page letter to Shewry’s legal
In a case that presented an issue similar to DHS’s current question, the
Ninth Circuit held that California doctors who recommend that their patients
use marijuana are not guilty of aiding and abetting or conspiracy under federal
law,” Renner wrote. That case, Conant v. Walters, holding that doctors
could not be prosecuted for recommending medical marijuana, was allowed to
stand by Bush administration officials, who allowed the deadline to appeal
to the U.S. Supreme Court to expire.
A unilateral decision not to comply with state law, on the grounds that it may
be prohibited by federal criminal law, without first receiving the guidance of
an appellate court, is barred by the California Constitution,’’ Renner
wrote, referring to Article III, Section 3.5 of the state’s constitution.
Shewry directed staff of the California Department of Health Services (CDHS)
to resume operations, and the reform community declared victory. “California’s
reinstatement of the card program squarely confirms that state medical marijuana
laws across the country remain completely valid and in force,” said Allen
Hopper, an attorney with the ACLU’s Drug Law Reform Project. “Patients
can breathe a sigh of relief today, and we applaud the Attorney General’s
prompt attention and resolution of this issue.”
Dampening the enthusiasm was the news that CDHS will be modifying the ID card
application to inform applicants that possession of marijuana remains a federal
crime and information provided by them could be used for federal prosecution.
In addition, CDHS will ask the three counties that have issued state ID cards
to notify all card-holders of their risk for federal prosecution.
Federal authorities have said they do not intend to prosecute individual medical
marijuana users, and Department of Health Services spokesman Ken August told
the San Francisco Chronicle there has been no demand for the state to supply
information from the ID card program. “Not so far,’’ he said.
Alliance Executive Director Ethan Nadelmann explained to the Los Angeles Times, “It
was always understood that the medical marijuana ID system would not provide
a protection against federal arrests. The whole point of the program was to
provide protection against arrests by state law enforcement and to make it
law enforcement authorities to enforce the law.”
ASA’s Steph Sherer pointed out on KZYX radio in Ukiah that, as with the
San Francisco program, ID cards will contain no identifying information such
as patients’ and caregivers’ names and addresses and the state will
not collect that information. However, each county in the program will collect
such information and the state’s guidelines for counties suggest they
keep the information on file for one year.
“Why should I have to register, like a sex offender, just to
use my medicine?” asked one patient in Humboldt county.
Many rank-and-file medical marijuana users have misgivings about the
card program. “Why should I have to register, like a sex offender,
just to use my medicine?” asked one patient in Humboldt county.
Karen O’Keefe, legislative analyst at the Marijuana Policy Project,
responded that unlike sex offenders’ registries, California medical
marijuana ID cards are voluntary. “Many patients and their advocates
believe that these voluntary medical marijuana cards can be helpful
at preventing police harassment,” said O’Keefe by email. “Cards
are far easier to verify than non-standardized written recommendations
and law enforcement officers tend to be less likely to wrongfully arrest
or seize medicine from patients with cards. For this reason, many patients
choose to obtain them.”
At the time of the launching of the pilot program, ASA Legal Director
Kris Hermes said, “We welcome this ID card system, but are concerned
that law enforcement be well-informed that legal patients and caregivers
are not required to obtain one, and should not be subject to harassment
and seizure of their medicine if they don’t choose to sign up.”
Attorney Bill Panzer of Oakland said that as long as a patient cultivates less
than 100 plants or possesses less than 100 kilos of marijuana, potential federal
sentences are fairly minimal, and it is rare if ever that the federal government
prosecutes cases carrying less than a 5-year mandatory minimum sentence. With
federal prosecution comes the possibility of civil forfeiture proceedings against
The question of ID cards has been a bone of contention since a statewide panel
comprised of law enforcement officials, patients and activists was convened
to implement Proposition 215. Law enforcement officials advocated for a card,
which was not required by the voter-approved initiative. As a compromise, a
voluntary card program was codified in SB420, which also enacted last-minute
cultivation and possession limits and other restrictions, as well as specifically
exempting medical marijuana from state laws against transportation of cannabis.
Officials of the California Highway Patrol long held that CHP would honor only
state-issued cards, but broadened their policy to accept doctors’ recommendations
after Americans for Safe Access filed a class action suit on behalf of patients
who had their medicine seized.
On September 10, Judge O’Brien ruled in Los Angeles Superior Court against
caregiver Richard Davis, who is challenging SB420 on constitutional grounds,
precisely because the ID card program is voluntary. “The ‘voluntary’ program
does not take away any protections of the CSA,” the court ruled. “It
merely eases the overseeing of the laws relating to marijuana use.” Davis
is appealing the ruling. (See http://www.ccrmg.org/journal/05spr/chp.html#komp
Sonoma County announced it would charge a whopping $80 yearly fee
for its cards
Meanwhile, counties are starting to issue state ID cards. Sonoma County
announced it would charge a whopping $80 yearly fee for its cards,
and San Francisco is planning to quadruple its fee to $50/year starting
More alarmingly, SF DPH plans to start retaining all documentation
provided by persons who obtain ID cards for up to one year, in accordance
with the new state guidelines. Current SF DPH policy is to return all
paperwork to the applicant after verifying physicians’ recommendations.
According to Daniel Abrahamson, Director of Legal Affairs at the Drug
Policy Alliance (Oakland), San Francisco Supervisor Ross Mirkarimi
and the acting director of the Department of Public Health have agreed
to host a town hall meeting about the issue at a future date.