Post-Arrest Approval For Medical Marijuana No Protection, California Appeals Court Rules

Thursday, 04 February 1999

Patients seeking legal protection under California's medical marijuana law generally must obtain a doctor's recommendation before their arrest, a state appeals court ruled recently.

The Court's ruling (People v. Rigo) affirmed the marijuana conviction of a gastritis patient who acquired a physician's recommendation to use the drug three months after police arrested him for cultivation. The defendant said he learned about treating gastritis with marijuana while living in Switzerland and was growing the drug to self-medicate.

The Court found that Proposition 215 did not protect the defendant's marijuana use because he made no effort to obtain a physician's recommednation to use the drug prior to his arrest, and no "exigent circumstances" existed to validate his subsequent approval. "Appellant did not seek medical approval until the consequences of the justice system gave him impetus to do so and did not do so in a reasonable amount of time for reasons independent of his arrest," the three-judge Court of Appeal panel unanimously ruled. "The language in the ballot pamphlet emphasized that the purpose of the initiative was to help seriously ill patients who act pursuant to a doctor's recommendation or approval. ...To allow self-medication in ... this case would improperly promote non-medically supervised use of marijuana ... which would frustrate the intent of the voters in enacting Proposition 215."

NORML Executive Director R. Keith Stroup, Esq. said that the decision should serve notice to patients who are self-medicating with marijuana. "Patients must obtain a recommendation from a physician or the protection afforded by Prop. 215 will not be available if they are arrested," he said.

The appeals court distinguished this case from an earlier ruling (People v. Trippet) made by the Court of Appeals, 2nd Division, that determined Prop. 215 "may be applied retroactively to provide, if its terms and the applicable facts permit, a defense to [an] appellant." In that case, the defendant successfully argued that her doctor's verbal recommendation to use marijuana for migraines qualified her for protection under Prop. 215.

For more information, please contact either Keith Stroup of NORML @ (202) 483-5500 or NORML Foundation Litigation Director Tanya Kangas @ (202) 483-8751.