MENDOCINO COUNTY SHERIFF'S OFFICE
THOMAS D. ALLMAN, Sheriff-Coroner
DIRECTIVE NUMBER: 2009-04-03-NO.1
SUBJECT: MEDICAL MARIJUANA
PURPOSE AND SCOPE
The purpose of this directive is threefold:
(1) ensure that marijuana grown or possessed for
medical purposes remains secure and does not find its way to non-patients or illicit markets;
help law enforcement personnel 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 in compliance with California law and County
BACKGROUND AND AUTHORITIES
The possession, sale, cultivation or transportation of marijuana is ordinarily a crime under
California law. (See, e.g., §§ 11357, 11358, 11359, 11360 & 11361 H&S; § 23222 CVC).
On November 5, 1996, California voters passed Proposition 215, which states, in part that
“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 verbal recommendation or approval of a physician.”
The federal Controlled substances Act (CSA) (21 U.S.C. §801, et seq.) states the federal
governments position that marijuana is a drug with “no currently accepted medical use.” Thus
the manufacture, distribution, or possession of marijuana is a federal criminal offense. The
difference between federal and state law has led to confusion, but the courts have found no legal
conflict. In adopting the current medical marijuana laws, California exercised its power to not
punish certain marijuana offenses under state law. California’s medical marijuana laws do not
limit the federal government’s ability to enforce the CSA.
On January 1, 2004, Senate Bill 420, the Medical Marijuana Program Act (MMP), became law.
(§§ 1362.7-11362.83.) The MMP established a voluntary statewide identification card program
for qualified medical marijuana patients and their primary caregivers. State and local law
enforcement officers are required to accept the cards unless there is reasonable cause to believe
that the card is false or fraudulent, or the card is being used fraudulently. (§ 11362.78.) In
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addition to establishing the card program, the MMP also defines certain terms, sets possession
guidelines for qualified patients and their primary caregivers, and recognizes a qualified right to
collective or cooperative cultivation of medical marijuana.
On May 13, 2004, the California Medical Board clarified that physicians who recommend
marijuana to their patients must follow the same accepted standards that a reasonable and
prudent physician would follow when recommending any medication. They include the
1. Taking a history and conducting a good faith examination of the patient;
2. Developing a treatment plan with objectives;
3. Providing informed consent, including discussion of side effects;
4. Periodically reviewing the treatment’s efficacy;
5. Consultations, as necessary; and
6. Keeping proper records supporting the decision to recommend the use of medical
In February 2007, the California State Board of Equalization issued a special notice confirming
that medical marijuana transactions are taxable, and businesses engaging in such transactions
must hold a Seller’s Permit. In
June 2007 the BOE published a special notice that addressed
frequent questions about the taxability of medical marijuana transactions.
On August 7, 2007, the Board of Supervisors received a request from its Criminal Justice
Committee for direction on the establishment of marijuana possession and cultivation guidelines
in accordance with SB 420 and H&S 11362.77. The Board voted to reassert and enforce the 25
plant limit specified in Measure G, and possession of no more than 2 pounds of processed
On January 8, 2008, the Board of Supervisors adopted Chapter 9.31 of the Mendocino County
Code, which addresses the cultivation of marijuana on parcels of land in the unincorporated
portions of Mendocino County. Violations of Chapter 9.31 are not subject to criminal
prosecution. The County may abate a violation by pursuing civil prosecution or through the
uniform nuisance abatement procedures specified in Chapter 8.75 of the County Code.
On May 22, 2008, the California Court of Appeal, Second Appellate District, in People v. Kelly,
held that H&S § 11362.77 is unconstitutional because it amended Proposition 215 without a vote
of the people. On August 13, 2008, the California Supreme Court granted an application for
review of the case. It is currently depublished and not citable.
On June 3, 2008, Mendocino County voters approved Measure B. The measure has two
operative sections: (1) it repeals Chapter 9.36 of the Mendocino County Code; and (2) it limits
the possession of medical marijuana by qualified patients and primary caregivers in Mendocino
county to only those amounts specified in H&S § 11362.77.
On July 31, 2008, the California Court of Appeal, Second Appellate District, in People v.
Phomphakdy, also held that H&S § 11362.77 unconstitutionally amended Proposition 215.
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October 28, 2008, the California Supreme Court granted a petition for review of this case. Like
Kelly, it is currently depublished and not citable.
In August 2008, the California Attorney General published Guidelines for the Security and Non-
Diversion of Marijuana Grown for Medical Use.
Attending Physician means an individual who possesses a license in good standing to practice
medicine or osteopathy issued by the Medical Board of California or the Osteopathic Medical
Board of California and who has taken responsibility for an aspect of the medical care, treatment,
diagnosis, counseling, or referral of a patient and who has conducted a medical examination of
that patient before recording in the patient’s medical record the physician’s assessment of
whether the patient has a serious medical condition and whether the medical use of marijuana is
appropriate. (H&S § 11362.7(a).)
Legal Parcel means a parcel of land for which one legal title exists (MCC § 9.31.030).
Physician’s Recommendation means a written or verbal recommendation for medical
marijuana from an attending physician. Possession of a valid MMP identification card is
evidence of a physician’s ecommendation. Physicians may not prescribe marijuana because it is
a Schedule I drug under the Controlled Substances Act.
Primary Caregiver is a person who is designated by a qualified patient and “has consistently
assumed responsibility for the housing, health, or safety” of the patient. (§ 11362.5(e). A person
may serve as a primary caregiver to more than one qualified patient provided that the patients
and caregiver all reside in the same city or county (§ 11362.7(d)(2).) A person may serve as a
primary caregiver to not more than one qualified patient who lives in another county, but only if
that person has not been designated as a primary caregiver by any other qualified patient (§
11362.7(d)(3).) Additionally, a primary caregiver must prove at a minimum that he or she
consistently provided caregiving,
(2) independent of any assistance in taking medical marijuana,
(3) at or before the time he or she assumed responsibility for assisting with medical
marijuana.(People v. Mentch 45 Cal. 4th 274)
Qualified Patient is a person whose physician has recommended the use of marijuana to treat
cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other
illness for which marijuana provides relief. (H&S § 11362.5(b)(1)(A).) This includes patients
who possess a Medical Marijuana Program Identification Card (H&S § 11362.7(c),) and a
person who is entitled to the protections of § 11362.5 but who does not have a MMP
identification card (§ 11362.7(f).)
I. CRIMINAL ENFORCEMENT
A. California does not provide any exception for individuals driving under the
influence of marijuana, and all such cases should be handled with appropriate
enforcement action (e.g., Vehicle Code § 23152, et seq.).
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B. Medical Marijuana Program Cardholders:
1. A qualified patient who presents a valid MMP identification card should
not be subject to arrest for possession, transportation, delivery or
cultivation so long as the amount of marijuana does not exceed 6 mature
or 12 immature marijuana plants and not more than 8 ounces of dried
2. A primary caregiver who presents one or more valid MMP identification
cards should generally not be subject to arrest for possession,
transportation, delivery or cultivation so long as the amount of marijuana
does not exceed the amounts allowable per-patient multiplied by the
number of valid MMP cards.
3. Subsections 1. & 2. above do not apply when there is evidence that an MMP card is being used fraudulently, or there is indicia of otherillegal activity (i.e. weapons, illicit drugs, or excessive amounts ofcash).
4. A qualified patient or primary caregiver may possess a greater quantity of
medical marijuana if the qualified patient has a doctor’s recommendation
that the amounts listed above do not meet the patient’s medical needs. In
no event however shall the amount of medical marijuana possessed,
transported, delivered or cultivated exceed that which is consistent with
the qualified patient‘s personal medical needs.
5. In no event may the total amount of marijuana possessed by a qualified
patient and that patient’s primary caregiver exceed the amounts allowed
for the qualified patient alone.
1. Qualified patients and primary caregivers may present other evidence that
they are entitled to the protections of § 11362.5, such as a written
recommendation from a licensed California physician.
2. Deputies need not abandon their search or investigation. The standard
rules of search and seizure apply.
3. Documentation should be reviewed for validity.
4. If, based on the totality of the circumstances, the deputy believes that the
medical-use claim is valid and the person is within the possession limits
set for MMP cardholders, then the person should not be arrested and the
marijuana should not be seized.
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5. If the deputy has probable cause to doubt the validity of a person’s
medical marijuana claim based upon the facts and circumstances known to
the deputy at the time, then the person may be arrested and all the
marijuana may be seized. It will then be up to the person to establish his or
her medical marijuana defense in court.
6. Deputies are not obligated to accept a person’s claim of having a verbal
recommendation from a physician that cannot be readily verified with the
physician at the time of detention.
D. Exceeding Possession Limits:
1. If a person has what appears to be a valid MMP card or medical marijuana
documentation, but exceeds the possession limits stated above, then the
person may be arrested and all marijuana may be seized. This also applies
to primary caregivers who may have multiple MMP cards or medical
marijuana documentation for multiple qualified patients.
2. Deputies who seize marijuana pursuant to this subsection from an
otherwise qualified patient or primary caregiver need not leave any
allowable amount of marijuana behind but may do so based on their sound
professional judgment and the totality of the circumstances.
E. Destruction of Seized Marijuana
Health & Safety Code §§ 11473-11479 define the conditions under which
seized marijuana may be destroyed. A ten pound sample (which may include
stalks, branches or leaves) and five representative samples consisting of
leaves or buds shall be retained for evidentiary purposes. Photographs must be
taken which reasonably demonstrate the total amount of marijuana to be
F. Case Preparation & Submission
1. Marijuana investigation / eradication reports should specifically address
a. The number and size of the plants seized.
b. The type of watering system and the water source.
c. The presence of large generators, or contamination from fuel, oil
or other hazardous materials (note that these should also be
reported immediately to the Environmental Health branch of
Public Health and to the Air Quality Management District).
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d. Indication of sales or personal use.
e. Any claims of medical necessity.
G. Return of Marijuana
Regardless of the prosecution status or disposition of any related criminal case,
this department will not be responsible for the return of any marijuana seized as
evidence unless presented with a valid court order requiring same.
II. MENDOCINO COUNTY CODE VIOLATIONS
A. Chapter 9.31 of the Mendocino County Code addresses the cultivation of
marijuana in the unincorporated areas of the county.
1. Section 9.31.050 makes it a public nuisance to cultivate more than 25
marijuana plants on one legal parcel, regardless of whether the plants are
grown indoors or outdoors, or whether the person growing the plants is a
qualified patient or primary caregiver.
2. Section 9.31.070 states that the 25 plant per-parcel limitation applies
regardless of the number of qualified patients residing on the parcel. The
limitation also applies to marijuana cultivated or possessed by a primary
caregiver for multiple qualified patients.
3. Section 9.31.090 prohibits the cultivation of marijuana in any amount
within 1,000 feet of a youth oriented facility, school or park; any school
bus stop; or any church. The distance is measured from the boundary of
the parcel containing the marijuana to the boundary of the parcel
containing the designated facility.
4. Section 9.31.100 requires marijuana grown outside to be fully enclosed by
a fence at least six feet in height, with a lockable gate that is locked at all
times when the patient or caregiver is not in the immediate area.
B. Persons who violate Chapter 9.31 are not subject to arrest or criminal prosecution.
The County may abate a violation by pursuing civil prosecution or through the
uniform nuisance abatement procedures specified in Chapter 8.75 of the
Mendocino County Code. The enforcement process is as follows:
1. Complete a NOTICE AND ORDER TO ABATE.
2. Serve the Notice in the manner specified by MCC § 8.75.070:
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a. By certified mail, addressed to the owner, or his or her agent, at the
address shown on the last equalized assessment roll or as otherwise
b. By certified mail addressed to anyone known to the deputy to be in
possession of the property at the street address of the property
being possessed; and
c. By posting such Notice and Order to Abate conspicuously in front
of the property on which, or in front of which, the nuisance exists,
or upon the portion of the property nearest to a street, highway, or
road, or most likely to give actual notice to the owner and any
person known by the deputy to be in possession of the property.
3. Complete a Sheriff’s Office incident report with a copy directed to the
Mendocino County Department of Planning & Building.
III. If you encounter a situation not covered in this directive, contact your supervisor.