Monday, December 3, 2007


    The California Court of Appeal's terrific 3-0
ruling in the Felix Kha case demolishes the
claims by Prop 215 opponents that federal law
bars local law officers from enforcing Prop 215
and returning patients' medicine:

* The court roundly rejects the notion that
local police are obliged to enforce federal drug
> It must be remembered it is not the job of the
>local police to enforce the federal drug laws as
> For reasons we have explained, state courts can
>only reach conduct subject to federal law
>if such conduct also transcends state law, which
>in this case it does not. To the contrary,
>Kha's conduct is actually sanctioned and made
>"noncriminal" under the CUA. (People v.
>Mower, supra, 28 Cal.4th at p. 471.)
> That may cause a dilemma for local narcotics officers in some instances,
>but it strikes us as being an entirely
>manageable consequence of our federalist form of
>government. By complying with the trial court's
>order, the Garden Grove police will
>actually be facilitating a primary principle of
>federalism, which is to allow the states to
innovate in areas bearing on the health and well-being of their citizens.

Incidentally, the decision fixes a loophole in
SB 420 (the Medical Marijuana Program - MMP),
where Vehicle Code section 23222 (possession of
less than one oz of MJ in an automobile )was
accidentally omitted from the list criminal
offenses from which Prop 215 patients are

>There is an additional, even more fundamental reason why qualified
>patients who are charged with violating Vehicle
>Code section 23222, subdivision (b)
>should be included within the ambit of the
>state's medical marijuana laws. As Kha notes,
>that section prohibits driving with marijuana,
>"[e]xcept as authorized by law." (Veh.
>Code, § 23222, subd. (b).) Since the MMP
>allows the transportation of medical
>marijuana (§ 11362.765, subd. (b)(1); People v.
>Wright, supra, 40 Cal.4th at pp. 93-94),
>the MMP effectively authorizes the conduct
>described in Vehicle Code section 23222,
>subdivision (b), when, as here, the conduct at
>issue is the transportation of a small amount
>of medical marijuana for personal use - conduct "authorized by law."

* The court rejects the myth that medical
marijuana contributes to a "marked increase in
violent crime", as argued in the "Riverside
County District Attorney's Office White Paper,
Medical Marijuana."

>"Suffice it to say, there is nothing in
>the record of this particular case to indicate a
>link between medical marijuana - in
>Riverside or anywhere else - and violent crime in Garden Grove. "

* It also absolves state officers of
accusations that they would be aiding or abetting
violation of federal law:

>Likewise here, holding the City or individual officers responsible for any
>violations of federal law that might ensue from
>the return of Kha's marijuana would
>appear to be beyond the scope of either conspiracy or aiding and abetting.

Overall, a terrific vindication of patients' rights under Prop 215!
- Dale Gieringer, Cal NORML
Dale Gieringer, Director - California NORML,
2215-R Market St. #278, San Francisco CA 94114
-(415) 563- 5858 -

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