FACTS ABOUT CALIFORNIA S MEDICAL MARIJUANA IDENTIFICATION CARD PROGRAM

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1 FACTS ABOUT CALIFORNIA S MEDICAL MARIJUANA IDENTIFICATION CARD PROGRAM Presented to the Orange County Board of Supervisors by Safe Access Now, May 2007

2 The local implementation of California s Medical Marijuana Identification Card (MMIC) Program is currently under discussion by the Orange County Board of Supervisors. Although the county has a statutory obligation to implement the program, nevertheless the subject has sparked a spirited discussion between local patients, county staff and the Board of Supervisors. The first public hearing on the issue conducted on April 17, 2007 yielded a wealth of information from those who testified before the Board of Supervisors, including members of the public (30 in favor of implementation and one opposed). In order to provide the Orange County Board of Supervisors with factual information in response to key concerns, primarily raised by the District Attorney s Office, we are submitting the following report. Safe Access Now s goal is to thoroughly answer all the important questions surrounding Orange County s implementation of the statewide MMIC program, so that the county s leadership can make a fully informed policy decision at the next public hearing on the subject. For more information, please contact: Safe Access Now F. Aaron Smith, Statewide Coordinator 818 Third St. Santa Rosa, CA Phone: (866) Fax: (866) safeaccessnow@gmail.com Web:

3 How many Orange County residents will participate in the state s medical marijuana ID card program? The fear that the card program will be abused by large numbers of recreational marijuana users is wholly unfounded. According to reports from other counties, enrollment in the program has actually been somewhat lower than anticipated. Only the most seriously ill patients have the incentive to enroll in the state MMIC program; recreational users are not participating, at least not at any statistically- or even anecdotally-significant rate. The County would be encouraging a lot of people to get these cards; maybe even thousands and thousands. As an example, Riverside County s program is serving a small minority of residents with serious medical conditions. According to National Survey on Drug Use and Health (NSDUH) estimates, Riverside is home to over 97,000 regular marijuana users. However, as of January 1, 2007 only 443 MMICs had been issued to local residents. Although the Riverside County program had been available for more than a year, less than one-half of one percent of the county s marijuana users obtained the MMIC clearly illustrating that this program is utilized by a small minority of severely ill or injured patients and is not subject to widespread abuse. Based the experiences of Riverside and other counties, the Orange County MMIC program will likely serve (at most) 1,000 to 1,500 residents in its first year of operation. The table below shows data from three counties which have all had their respective MMIC programs in place for an entire year. Patients with state/county MMIC after 1st year of implementation 3 Estimated percent of marijuana users with an MMIC Estimated Estimated MMIC participants population in marijuana per 100,000 County users 2 residents Riverside 1,946,419 97, % Kern 756,825 56, % Santa Barbara 400,762 29, % 1, % Orange 2,988, ,950 (projected) (average) (average) 1 US Census Bureau: State and County Population Estimates, National Survey on Drug Use and Health: Marijuana Use in Substate Areas, June 16, 2005 (residents have reported using marijuana within the last 30-days) 3 California Department of Health Services, Medical Marijuana Program Unit, January 2006

4 Will implementation increase local demand for marijuana? The District Attorney repeatedly warned that once the medical marijuana program is implemented, demand for marijuana in Orange County will increase. There are absolutely no facts available to support such a claim. All available data actually suggests that recreational marijuana use has not increased since the passage of Proposition 215 and use has actually decreased among some age groups. Unfortunately, data was not collected on all age groups use of marijuana in California before the passage of Proposition 215; however, according to the annual NSDUH surveys conducted between 2000 and 2005, marijuana use in California remains stable (between 6.5% and 7.5% used within last thirty days). This program will increase demand for marijuana very substantially in our county. Although state-specific data on adult marijuana use is limited, teen use and arrest rates have been thoroughly monitored before and after the passage of California s medical marijuana laws. All the data that has been collected by the state indicate that the passage of the Compassionate Use Act (Proposition 215) did not change marijuana usage patterns in California. An analysis commissioned by the California Department of Alcohol and Drug Programs in 1999 found no evidence supporting that the passage of Proposition 215 increased [teen] marijuana use during this period. 4 Additionally, the biennial California Student Survey (CSS), conducted by the California Attorney General s Office found that marijuana use among teens had significantly declined faster than the national average since the passage of Proposition 215. The CSS results (shown below) found that marijuana use in all grades dropped markedly by every measure between early 1996 (when Prop. 215 was approved) and Among ninth graders, current use dropped by nearly half. Figure A: Use of marijuana in the past six months among California teens: th grade: 33% decrease since late 1995/early 1996 (from 10.9% to 7.3%) 9th grade: 45% decrease since late 1995/early 1996 (from 34.2% to 18.7%) 11th grade: 30% decrease since late 1995/early 1996 (from 42.8% to 9.8%) 5 45% 40% 35% 30% 25% 20% 15% 10% 5% % 11th Grade 9th Grade 7th Grade 4 Rodney Skager, Greg Austin and Mamie M. Wong, Marijuana Use and the Response to Proposition 215 Among California Youth, a Special Study From the California Student Substance Use Survey (Grades 7, 9, and 11), , p California Office of the Attorney General, Eighth Biennial California Student Survey, Tables 5 and 9; California Office of the Attorney General, 11th Biennial California Student Survey, Tables 2.1, 2.2, 2.3, 2.8, and 2.12.

5 Another telling indication that our medical marijuana laws have not increased demand for marijuana are the arrest rates reported by the California Department of Justice. California s yearly arrest rates (per 100,000 residents) show no significant change in statewide marijuana arrests since the passage of Proposition 215 or Senate Bill 420. If demand for marijuana had somehow increased, it would be logical to conclude that arrest rates would have also increased. 300 Figure B: California marijuana arrests per 100,000 residents: Prop. 215 approved SB 420 enacted The passage of the landmark state law which legalized medical use, possession and cultivation of marijuana did not lead to increased use of the drug nor did it impact statewide arrest rates. Clearly, the implementation of the state ID card program a mere administrative action in accordance with existing medical marijuana law will not increase drug use or cause problems for law enforcement. Does California s Medical Marijuana Program include reasonable safeguards against abuse? Questions have risen about whether the MMIC program goes far enough to regulate doctors or providers of medical marijuana. While the countyadministered program does not involve policing doctors, part of the program s operational protocol includes verifying that an ID card applicant received their medical marijuana recommendation from a physician who is licensed and in good standing with California s medical board. This will be a free-forall. It would be inappropriate and unprecedented for the county to venture into the certification process for local physicians. Any suspicious activity on the part of local doctors should be directed to the appropriate authorities at the California State Medical Board, which can, and does, revoke the licenses of doctors who issue recommendations for medical marijuana without proper patient examination. The Orange County Board of Supervisors does have the authority to set policies relating to the land-use issues of medical marijuana dispensaries. However, dispensary establishment, regulation, or other issues are in no way related to the issuance of the MMIC. Patients are able to obtain marijuana through dispensaries or collectives with or without a medical marijuana ID card. The cards simply provide a means for legitimate patients to identify themselves to law enforcement. If the county wishes to move toward regulating dispensaries, Safe Access Now would encourage that action but only after patients gain access to the ID cards. The state MMIC design includes a holographic seal to prevent forgery. To date, there have been no reports of counterfeit cards being presented to law enforcement.

6 Does implementation of the medical marijuana ID card program violate federal law? The assertion that federal law preempts any state-level medical marijuana law is not supported by any official court ruling or opinion. The US Supreme Court has ruled that federal agents can apply federal law to arrest and prosecute medical marijuana patients (Raich v. Gonzalez). However, in the decade since the enactment of California s Compassionate Use Act, the US Government has never even alleged that federal law supersedes state-level medical marijuana laws. The US Supreme Court has ruled against this time after time. In the United States Supreme Court s 2002 ruling in Conant v. Walters, the court found that doctors have a first amendment right to recommend marijuana to their patients and that they would not be aiding and abetting a federal crime by doing so. Similarly, issuing an identification card which merely documents the physician s recommendation does not amount to a federal crime. The counties of San Diego, San Bernardino and Merced attempted to sue the State of California for compelling them to issue the MMIC because they believed that federal law preempted the state s Compassionate Use Act and Medical Marijuana Program Act. On December 6, 2006, the San Diego County Superior Court issued a ruling which rejected the claims of the three rogue counties. The court upheld both of California s medical marijuana laws and found that counties are not violating federal law by issuing the MMIC to patients who qualify under state law. District Attorney s Legal Citations Presented to the Board In an attempt to prove his point at the April 17 public hearing on the MMIC program, District Attorney cited quotes from two US Supreme Court rulings: Printz v. United States and Raich v. Gonzalez. In addition to citing these cases both of which do not invalidate California s medical marijuana laws District Attorney ended his presentation with a statement of his own personal opinion, which is wholly inconsistent with relevant case law and the spirit of American Federalism. Printz v. United States, 521 U.S. 898 (1997): All state officials owe a duty to the national government to enact, enforce and interpret state law in such a fashion as not to obstruct the operation of federal law. All state actions constituting such an obstruction are ipso facto invalid. It is particularly interesting that the District Attorney chose to quote from Printz because it is one of the relevant pieces of case law which upheld the rights of state and local officials to refuse to enforce federal laws. In their 1997 ruling, the Supreme Court found that Jay Printz (a County Sheriff from Montana) was not required to enforce the federal Handgun Violence Prevention Act ( the Brady Bill ). While Printz does not allow state or county officials to obstruct the operation of federal law, the ruling makes clear that state and county officials are not obligated to enforce federal law. Neither the Compassionate Use Act nor the Medical Marijuana Program Act obstruct federal authorities from enforcing federal law and therefore, Printz does not invalidate California law. Raich v. Gonzalez, 545 U.S. 1 (2005): The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. Once again, District Attorney seems to be unclear on the ramifications of recent case law. The Raich ruling did not find that California law was preempted by federal law. Raich merely reaffirmed that federal law enforcement officials have the right to enforce federal drug laws, even where state-level laws are in place to protect medical marijuana patients. The quote above is a directive to federal law enforcement officers and agencies, not state and local agencies. Shortly following the Raich decision, California Attorney General Bill Lockyer issued an opinion stating that, The federal government s decision to criminalize the use and possession of marijuana for all purposes does not require

7 California to do the same. It is well-settled that the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs. (Printz v. United States (1997) 521 U.S. 898, 925; New York v. United States (1992) 505 U.S. 144,161 [Congress may not commandeer the legislative processes of the states].) 6 This is a state organization the local District Attorney s Office we follow the state law. I am not going to prosecute any case where there is a protection under the Compassionate Use Act or the Medical Marijuana Program Act. The Attorney General also concluded that the issuance of medical marijuana ID cards did not amount to a federal crime and ordered the Department of Health Services to continue the operation of the MMIC program. District Attorney personal opinion: The state or this board does not have the power to grant its citizens the right to violate federal law This statement is not supported by any existing statute or case law and is merely a personal opinion that was presented along side legal citations. If there was any legal bearing to this opinion, surely the federal government would have made a case for preemption in at least one of the twelve states with medical marijuana statutes. Finally, the District Attorney stated that state agencies are bound by California law, which is entirely correct. Just as the District Attorney s Office is required to uphold state law not federal law the County of Orange Health Services Agency and the Board of Supervisors are likewise bound by state law, as a requirement of Article III, Section 3.5 of California s Constitution. Why should Orange County implement the program without waiting until San Diego s litigation is settled? The law unequivocally requires that the county implement the MMIC program, unless an appellant court rules that the law is somehow invalid. The counties of San Diego and San Bernardino have decided to appeal the lower court s decision to uphold state law; however that has no bearing on the legal status of the program in Orange County or anywhere else in California. The appeals process is expected to be very lengthy and the appellants have little or no chance of succeeding in the attempt to overturn the ruling of the trial court. If the county were to wait until a decision from the appellant court, it is likely that several bona fide patients will face needless arrest at the hands of local law I think it is just prudent for us to monitor the outcome of the decision before taking any action. -County Supervisor, Janet Nguyen enforcement only later to have their cases dismissed when they are found to be in compliance with the law. Not only would this situation put seriously ill patients at risk, it would also expose the county and its cities to the risk of litigation by local patients. It would be unreasonable for the County of Orange to adopt a policy of not recognizing any legislation, regulatory mandate or certified vote-count until it is eventually challenged and upheld by an appeals court. 6 California Office of the Attorney General, July 15, 2005: Department of Health Services s [sic] Questions Regarding Medical Marijuana Identification Cards and Federal Law

8 Will the local implementation of the MMIC program benefit Orange County s medical marijuana patients and law enforcement officers? According to California s Health and Safety Code, a patient with a valid MMIC will not be subject to arrest for possession of marijuana by state and local law enforcement who conduct 99% of marijuana arrests as long as their activity is otherwise within the guidelines set forth by the law. 7 Anecdotal evidence from other counties with approved programs indicates that law enforcement is respecting state law and the MMIC program. If law enforcement refuses to comply with state law, legal action will most certainly force a policy change. The California Highway Patrol (CHP), among other jurisdictions, used to work from a policy which recommended that officers confiscate marijuana from qualified patients, regardless of their status under state law. This illegal policy forced patients to initiate litigation and, after losing their case, the CHP changed their policy to reflect the requirements of state law. 8, 9 The identification cards simply provide further confidence for law enforcement officers who are tasked with validating the legal status of persons claiming to have a qualified immunity under the state s medical marijuana laws. Additionally, verifying the status of a state-issued MMIC is easier than verifying a hand-written physician s recommendation. The ability to validate a card-holder s status with such ease and efficiency allows officers to focus on those who may be abusing the law. When Riverside County implemented the state s MMIC program, in December of 2005, the County District Attorney s Office expressed their support for the program to their local news outlets. Spokeswoman for the Riverside County District Attorney s Office, Ingrid Wyatt, told the Los Angeles Times that her office recognizes that we have to follow the law, and there is a legitimate need. Those people that have [the card] will now be properly identified, Wyatt said, while we'll be able to prosecute those who try to abuse the system. 10 Law enforcement officers are already able to use their own discretion during enforcement stops and the MMIC provides them with more information on which to base their decisions. It would defy logic for any law enforcement official to oppose this program because it does not change existing state law and only provides a valuable tool to assist peace officers in their enforcement efforts. 7 California Health and Safety Code, (e) 8 Superior Court for the County of Alameda, Unlimited Jurisdiction: Americans for Safe Access v. California Highway Patrol 9 California Highway Patrol s Medical Marijuana Policy: HPM , Chapter 1 10 Susannah Rosenblatt, Los Angeles Times: Riverside County Offers Pot ID Cards, December