When is a medical marijuana user a “qualified patient”

Jay Leiderman
By: Jay Leiderman
May 23 2016


Health and Safety Code section 11362.5 (d) states in pertinent: “…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.” (emphasis added)

The defendant maintained a valid physician’s recommendation throughout his cultivation process.  Once a recommendation is obtained from a physician for the medical use of cannabis, it may be used perpetually for that purpose. “[W]e see nothing in the statute that requires a patient to periodically renew a doctor’s recommendation regarding medical marijuana use. The statute does not provide, as the Attorney General asserts, that a recommendation “expires” after a certain period of time.” People v. Windus (2008) 165 Cal. App. 4th 634, 641.  

Even when a physician testifies contrary to the defendant with respect to an oral recommendation the matter must be resolved by the jury. See, People v. Jones (2003) 112 Cal.App.4th 341, 350 (error to exclude defense evidence where defendant’s testimony raised reasonable doubt about physician’s oral approval.) “But, of course, the statute uses the conjunctive; the defense it provides obtains if there is either a “recommendation or approval of a physician.” We think it clear that these two terms mean something slightly different, and that ‘”approval”‘ connotes a less formal act than a “recommendation.”” People v. Trippet (1997)56 Cal.App.4th 1532. “The word “recommendation,” as used in the Compassionate Use Act, suggests the physician has raised the issue of marijuana use and presented it to the patient as a treatment that would benefit the patient’s health by providing relief from an illness. The word “approval,” on the other hand, suggests the patient has raised the issue of marijuana use, and the physician has expressed a favorable opinion of marijuana use as a treatment for the patient. Thus, a physician could approve of a patient’s suggested use of marijuana without ever recommending its use.” People v. Jones (2003) 112 Cal.App.4th 341, 347.

A single lay witnesses’ testimony on this issue is sufficient to require the court to instruct the jury on the medical use defense; People v. Jones (2003) 112 Cal.App.4th 341, 350.

“Here, we conclude the evidence was sufficient to raise a reasonable doubt as to whether Dr. Morgan approved defendant’s use of marijuana for his migraine headaches. If the jury credited defendant’s testimony that Dr. Morgan told him marijuana use “‘might help, go ahead,’” the jury could find defendant had Dr. Morgan’s “approval” because Dr. Morgan expressed a favorable opinion of defendant’s proposed marijuana use. Because defendant’s testimony was sufficient to raise a reasonable doubt over the fact of the physician’s approval, the trial court erred in barring defendant from presenting his Compassionate Use Act defense to the jury.” id at 350


At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

“A creative and multi-faceted vigorous defense comes from a creative, multifaceted lawyer.” – Jay Leiderman.

A creative and multi-faceted vigorous defense comes from a creative, multifaceted guy.” – Jay Leiderman. Here’s Jay’s recent career as told through pictures.

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: https://www.jayleiderman.com/contact/

2 thoughts on “When is a medical marijuana user a “qualified patient”

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  2. True, true and true. Please also write about the daily attacks on Jews IN Jerusalem and the missing police defense of these Jews. It's unbearable to see school children attack Jewish cars to destroy and kill and limp response by Israeli government. This is the way to the Mount of Olives cemetery we are talking about, or Ir David, its really really badifefRer.ng to India and the Brits, has anyone read or seen the series Jewel in the crown? The bad guys who rape are Hindus, the good guy who is wronged is Muslim.

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