After the federal raids of Oaksterdam University, founder Richard Lee’s home, Coffeeshop Blue Sky, an affiliated dispensary, the Oaksterdam Museum, and even the Oaksterdam Gift Shop on April 2, 2012, many qualified patients have wondered if they should renew their recommendation. Others who have not yet obtained a recommendation are wondering if they should do so. People question whether anyone in law enforcement respects medical cannabis law or the rights of qualified patients, and thus, is there any point in having a recommendation. Others worry if getting a recommendation will put them at greater risk of arrest or harassment, than not having one.
Despite these concerns, qualified patients are better off if they have a current recommendation. Below are some questions and answers that demonstrate why.
One: Are the feds likely to raid or indict my doctor solely for recommending medical marijuana to me and other qualified patients? Thus far in this recent crackdown, the federal government has not targeted doctors who recommend medical marijuana. Most likely, the feds have stayed away from doctors because physicians remain protected from harassment to a degree by Conant v. Walters. In that 2002 case, the Ninth Circuit Court of Appeals held that the federal government cannot punish, or threaten to punish, physicians solely for recommending medical marijuana to a patient. Though doctors cannot help patients get marijuana, or conspire with them to do so, the First Amendment permits doctors to discuss medical marijuana with their patients freely, and recommend it, if appropriate.
Two: If my doctor is raided or investigated and the feds seize my medical records, are they going to use those records against me? Most likely, if the federal government seizes medical records from a physician who has recommended medical marijuana, the federal government is targeting the doctor, not individual patients. To the best of our knowledge, when law enforcement has seized an individual physician’s records in the past, law enforcement did not use information in the records to investigate, target, or harass patients. We cannot know if law enforcement refrained from investigating individual patients treated by the physicians in those cases because of the protective orders sought by organizations such as the American Civil Liberties Union, concerns about doctor-patient confidentiality, or the inevitable public relations stink that would come from using confidential medical records to harass sick patients.
Three: Does my recommendation still help protect me from arrest, prosecution, and conviction? While medical marijuana remains illegal under federal law, the feds do not have the resources or time to prosecute individual qualified patients solely for being qualified patients. Thus, qualified patients are still more likely to wind up in state court than in federal court. And in state court, qualified patients still have affirmative defenses.
However, to present an affirmative defense, or avoid arrest in the first place, qualified patients must offer proof that they have received a recommendation from a physician for the use of medical cannabis. The best way to offer this proof remains a valid, written recommendation.
Though according to People v. Windus, a qualified patient who has received a recommendation in the past, but has not renewed the recommendation, can still assert a medical marijuana defense, this ruling offers limited comfort. Windus can aid qualified patients if their recommendation has expired, and they are in court, facing criminal charges…but it does little to help qualified patients avoid arrest.
To help avoid arrest, qualified patients should have a valid, written recommendation for the use of medical cannabis. By presenting their recommendation, if necessary, when police pull them over or question them, qualified patients can reduce the risk of arrest the risk of arrest. By contrast, if qualified patients have an expired recommendation, most police officers will arrest the qualified patient, letting a court sort it out. While some officers will simply seize the medicine and give the patient a citation with a court date, others will jail the patient.
Thus, by going without a current, written recommendation, qualified patients inadvertently increase the chances that police will arrest them, jail them, impound their car, confiscate their medicine, and force them to appear in court. The drug war has new victims every day; do everything you can not to become one, including have a current recommendation.
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The Law Offices of Jessica C. McElfresh focuses on medical cannabis law in San Diego. For more information, email Jessica at
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