August 2008

In 1996, California voters approved an initiative that exempted certain patients and their
primary caregivers from criminal liability under state law for the possession and cultivation of
marijuana. In 2003, the Legislature enacted additional legislation relating to medical marijuana.
One of those statutes requires the Attorney General to adopt “guidelines to ensure the security and
nondiversion of marijuana grown for medical use.” (Health & Saf. Code, § 11362.81(d).1
) To
fulfill this mandate, this Office is issuing the following guidelines to (1) ensure that marijuana
grown for medical purposes remains secure and does not find its way to non-patients or illicit
markets, (2) help law enforcement agencies perform their duties effectively and in accordance
with California law, and (3) help patients and primary caregivers understand how they may
cultivate, transport, possess, and use medical marijuana under California law.


A. California Penal Provisions Relating to Marijuana.

The possession, sale, cultivation, or transportation of marijuana is ordinarily a crime under
California law. (See, e.g., § 11357

[possession of marijuana is a misdemeanor]; § 11358[cultivation of marijuana is a felony]; Veh. Code, § 23222 [possession of less than 1 oz. of
marijuana while driving is a misdemeanor]; § 11359 [possession with intent to sell any
amount of marijuana is a felony]; § 11360 [transporting, selling, or giving away marijuana
in California is a felony; under 28.5 grams is a misdemeanor]; § 11361 [selling or
distributing marijuana to minors, or using a minor to transport, sell, or give away
marijuana, is a felony].)

B. Proposition 215 – The Compassionate Use Act of 1996.

On November 5, 1996, California voters passed Proposition 215, which decriminalized the
cultivation and use of marijuana by seriously ill individuals upon a physician’s
recommendation. (§ 11362.5.) Proposition 215 was enacted 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,” and to
“ensure that patients and their primary caregivers who obtain and use marijuana for
Unless otherwise noted, all statutory references are to the Health & Safety Code. – 2 –
medical purposes upon the recommendation of a physician are not subject to criminal
prosecution or sanction.” (§ 11362.5(b)(1)(A)-(B).)

The Act further states that “Section 11357, relating to the possession of marijuana, and
Section 11358, relating to the cultivation of marijuana, shall notapply 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 verbal recommendation or approval of a
physician.” (§ 11362.5(d).) Courts have found an implied defense to the transportation of
medical marijuana when the “quantity transported and the method, timing and distance of
the transportation are reasonably related to the patient’s current medical needs.” (People
v. Trippet (1997) 56 Cal.App.4th 1532, 1551.)