California Compassionate Use Act and Landmark Cases

The Compassionate Use Act (CUA) was approved by voters as a ballot initiative in 1996. The law is codified at Health and Safety Code section 11362.5 and provides, in relevant part, as follows: "(b)(1) The people of the State of California hereby find and declare that the purposes of the CUA are as follows: "(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. "(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction. "(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana. "(2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes. "(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes. "(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. "(e) For the purposes of this section, 'primary caregiver' means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person." The nature of the right to use marijuana created by the CUA has been examined in several California court decisions. In People v. Mower (2002) 28 Cal.4th 457, the California Supreme Court rejected the defendant's argument that the CUA provided an absolute defense to arrest and prosecution for certain marijuana offenses and concluded that the statute provides a limited defense from prosecution for cultivation and possession of marijuana. (Mower, at p. 470.) The defense accorded by the CUA is limited to "patients and primary caregivers only, to prosecution for only two criminal offenses: section 11357 (possession) and section 11358 (cultivation)." (People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1400 (Peron).) In view of the statute's narrow reach, "courts have consistently resisted attempts by advocates of medical marijuana to broaden the scope of these limited specific exceptions." (People v. Urziceanu (2005) 132 Cal.App.4th 747, 773 33 Cal. Rptr. 3d 859 (Urziceanu).) For example, courts have determined that the CUA did not create "a constitutional right to obtain marijuana" (Urziceanu, at p. 774), and have refused to expand the scope of the CUA to allow the sale or nonprofit distribution of marijuana by medical marijuana cooperatives. (Urziceanu, at p. 774; Peron, supra, at pp. 1389-1390.)