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Proposed Medical Marijuana Regulation Legislation Failed

California AB 604 Unconstitutional

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Proposed Medical Marijuana Regulation Legislation Failed

Until just one week ago, AB 604 was a bill about eyewitness identification in criminal investigations. 

Assemblymember Tom Ammiano’s AB 604 to regulate California’s medical cannabis industry failed in the state legislature Friday. Some opponents of the proposed legislation say that even had the bill passed, it would have been unconstitutional.

The proposed legislation would have created a new division of police, under the state’s Alcoholic Beverage Control, to “develop, implement, and enforce regulations for commercial medical marijuana activity throughout the state, including production, processing, distribution, transportation, and testing.”

The bill would have required anyone who cultivates, manufactures, tests, transports, stores, distributes, or sells cannabis to register with the new division of medical marijuana police. However, opponents like Attorney Letitia Pepper say that requiring citizens to register with the state for activity that is federally illegal is in violation of the 5th amendment, which protects against self-incrimination.

“Making people register under state law is definitely setting them up to incriminate themselves as cannabis users, for purposes of being prosecuted under federal law, under which any cannabis (except that provided by the U.S. goverment for a very small number of people) is illegal,” Pepper said.

Since AB 604 would have required that registrants disclose their residential address as well as the physical address of the property on which any marijuana cultivation would be proposed to take place, patient-growers who legally provide medicine to dispensaries could have faced a higher risk of prosecution if the bill had passed.

This idea is not so far-fetched. When the City of Garden Grove (Orange County) required medical marijuana dispensaries to register with local authorities in 2011, then decided to ban the shops, a few months later police officials turned the list of registered dispensaries over to the DEA which subsequently ordered them to close.

A system like that proposed by AB 604 would have let law enforcement claim, “’Oh, you’re not in compliance,’ and then seize [patients’] assets and also prosecute them,” Pepper said. After all, the Compassionate Use Act of 1996 did not “legalize” medical marijuana, but only provided a defense in case of prosecution for activities covered in the Act. But defenses are only presented at trials, and trials often start months or even years after charges have been pressed and property seized.

AB 604 likely would have been in hot water with another legal issue if it had been approved: the fact that Prop. 215 did not make sales legal. “Unless AB 604 purports to amend or repeal the code sections that make the sale of marijuana illegal, then selling any marijuana for any purpose—medicinal or not—is still illegal,” Pepper said.

“Medical marijuana collectives can not be run to make a profit, and therefore cannot be ‘commercial,’” Pepper added. “So, in order to set up a ‘commercial’ system, Assemblymember Ammiano must also legalize the sale of marijuana. And that is going to be a hard sell to the Republican legislators, and, I suspect, a hard sell to many Democrats as well…”

Until about a week ago, AB 604 was a bill about eyewitness identification in criminal investigations. However, riding on the coattails of the Justice Department’s recent decision not to stand in the way of Washington and Colorado as they implement recreational cannabis legalization, and in a move that opponents are calling a bait and switch, Assemblymember Ammiano gutted the proposal and replaced it with AB 604, which is a version of a bill he sponsored that failed in the Senate earlier this year.

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