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Medical Marijuana is Legal in California — Just do it the Right Way

These days one of the most common requests I get from clients is to help them “set up” a dispensary to sell medical marijuana. “No really”, they say, “I want to be legit”. The first thing I tell these clients is that they shouldn’t do it. Someone was in last week asking me to set him up with someone who could supply him with a larger volume of marijuana. I told him to get out.

The first thing I have to say about setting up a marijuana “business” is that it is not legal. Nowhere in the California Attorney General’s Guidelines on Medical Marijuana does it mention the word “business”. Please see:

Selling or furnishing marijuana to other people is still a crime under California Health and Safety Code section 11360. Cultivation of marijuana is a felony in California (H&S Code section 11358). Possession of over an ounce of marijuana is a felony (H & S Code Section 11357) Finally, under an ounce in or out of a vehicle is a crime too. So don’t break the law.

All this being said possession, cultivation and transportation of medical marijuana is NOT a crime in California. Anywhere in California. But we have to comply with the law. How do we do this?

First, get a copy of the Attorney General’s Guidelines on Medical Marijuana. Next, read it. Maybe read it a second time and then, if you have additional questions, call me.

It goes like this: Doctors can’t actual prescribe medical marijuana like they can vicodin or valium. They can make a written or verbal medical recommendation based on a variety of ailments from which a patient may be suffering. These include but are not limited to: cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

Doctors can only make such a recommendation in the same manner in which they write prescriptions. They must see the patient for an exam, take a medical history, develop a treatment plan, and discuss the plan and the potential side effects of treatment. Doctors must review treatment plans with patients and doctors must keep records of these patients.

What does all that mean? It means that you should see a doctor if you want a medical marijuana recommendation, possibly more than once. At the very least we need to keep our recommendations current. They expire.

What does the recommendation get us? If you are a “qualified patient” and get a medical recommendation for marijuana you can lawfully possess 8 ounces of dried marijuana and maintain no more than 6 mature or 12 immature plants per qualified patient. With an appropriate recommendation it is possible to possess more.

How do the “dispenaries” play into this? Many of us do not grow our own marijuana so some people took it upon themselves to do it for us. However, this does not fall squarely within the Guidelines. These people are commonly referred to as “dispensaries”. They should be referred to as “Primary Caregivers”. The Guidelines say that a primary caregiver is someone designated by a qualified patient and has “consistently assumed responsibility for the housing, health or safety of a patient.” It goes on to say that even though a primary caregiver has consistently supplied marijuana for a patient, this in and of itself does not automatically make them a primary caregiver.

What does that mean? It means there probably shouldn’t be storefront marijuana shops and a patient should have more than a buyer/seller relationship with his caregiver. Talk to your caregiver. Discuss your specific illness with them. Possibly even with other patients. Maybe there are different types of marijuana or different ingestion methods to better address one’s medical needs. Maybe your caregiver can advise you on this. Just as one discusses medication with a pharmacist, one can and should discuss treatment and efficacy with their caregiver.

It should also be noted that caregivers can give care to more than one patient at a time, just like a doctor can treat more than one patient. The patient and caregiver should reside in the same county as one another where possible.

Can you pay your caregiver for marijuana? It is still unlawful to “buy” marijuana in California. The Guidelines state that a caregiver can get compensation for actual expenses for their services incurred in providing care. This includes out of pocket expenses. It should also be noted that the State Board of Equalization is now seeking sales and or use tax from any medical marijuana transactions which are taxable under California law. Please see your CPA or tax advisor about such transactions.

Non-profits like cooperatives and collectives will be discussed later.

If you have questions about medical marijuana or if you have been arrested for drug charges, call me, Attorney Jeffrey Vallens (818) 783-5700 or (888) 764-4340 or Email me at:

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