75A - PH - MEDICAL MARIJUANA - PROHIBIT

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of the statutes' parameters remains illegal under California law. Relatively few individuals will be able to assert the affirmative defense i.n the statute. To use it a person must be a "qualified patient", "primary caregiver", or a member of a "cooperative". Once they are charged with a crime, if a person can prove an applicable legal status, they are entitled to assert this statutory defense. A strict construction of California law The California Attorney General, Bill Lockyer, has also spoken on medical marijuana. His office issued a bulletin to California law enforcement agencies on June 9, 2005. The office expressed the opinion that Gonzales v. Raich did not address the validity of the California statutes and, therefore, had no effect on California law. The office advised law enforcement to not change their operating procedures. The Attorney General made the recommendation that law enforcement neither arrest nor prosecute "individuals within the legal scope of California's Compassionate Use Act." When California's medical marijuana laws are strictly eonsta~ued our two offices come to a point of agreement. We believe that Gonzales v. Raich does afi~ect California law. However, we also acknowledge that the California statutes offer some legal protection to "individuals within the legal scope oP' the acts. The medical. marijuana laws speak to patients, primary caregivers, and true collectives. These people are expressly mentioned in the statutes and, if their conduct comports to the law, may have some state legal protection for specified marijuana activity. Conversely, all medical marijuana establishments that fall outside the letter and spirit of the statutes are not legal; including dispensaries and store-front facilities. These establishments have no legal protection. The Attorney General's opinion does not present a contrary view. Conduct Health and safety code sections 11362.765 and 1.1362.775 describe the conduct for which the affirmative defense is available. If a person qualifies as a "patien.t", "primary caregiver", or is a member of a legally recognized "cooperative" they have an affirmative defense to possessing a defined amount of marijuana. Under the statute no more than eight ounces of dried marijuana can be possessed. Addi.tional.ly, either six mature or twelve immature plants may be possessed.ls Note that if someone claims patient or primary caregiver status, and possesses more than this amount of marijuana, he can be prosecuted for drug possession. The qualifying individuals may also cultivate, plant, harvest, dry, and/or process marijuana; but while still strictly observing the permitted amount of the drug. The statute may also provide a limited affirmative defense for possessing marijuana for sale, transporting it, giving it away, maintaining a marijuana house, knowingly providing a space where marijuana can be accessed, and creating a narcotic nuisance. ~~ However, for anyone who cannot lay claim to the appropriate status under the statutes: all instances of marijuana possession, cultivation, planting, harvesting, drying, processing, possession for the purposes of sales, completed sales, giving away, administration, transportation., maintaining of marijuana houses, knowingly providing a 75A-67