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Long Beach Criminal Defense Attorney


If you or someone close to you has been arrested for growing, possessing or using or dispensing medical marijuana, Long Beach criminal defense attorney Matthew Kaestner, can answer your questions. He has experience fighting these cases in both Los Angeles and Orange Counties. Mr. Kaestner is a board certified criminal law specialist. Criminal defense attorney Kaestner will take your calls personally at (562) 437-0200.

The following overview of the medical marijuana laws, is a synopsis only, and is not intended as legal advice. However, it provides a basic framework of California's medical marijuana laws as well as the resistance of the government to these laws.


In 1996, the passage of a voter initiative in California caused the "Compassionate Use Act," to take effect. It was known then as proposition 215. That law is now located in California's Health and Safety Code as section 11362.5. In short the law allows for patients and their "primary caregiver" to cultivate and possess marijuana lawfully after receiving a recommendation by a medical doctor licensed to practice medicine. Thus, the medical marijuana law provides an exception for patients to cultivate and possess marijuana that would otherwise be unlawful. See the entire text of H&S 11362.5, the compassionate use act, and the statutes that prohibit cultivation and possession of marijuana.

In January of 2004, the California State Senate passed SB420 in order to "to avoid unnecessary arrest and prosecution" of patients and caregivers and "to provide needed guidance to law enforcement." SB420 is now Health and Safety Code sections 11362.7 through 11362.83. Health and Safety Code section 11362.77 provides that "a qualified patient or primary caregiver" may lawfully cultivate no more than 6 mature or 12 immature plants per qualified patient. The law also allows a qualified patient to possess no more than 8 ounces of dried marijuana. It law further defines dried marijuana as only the "dried mature processed flowers of female cannabis." Thus seeds, stems and leaf material are not considered in determining the 8 ounce limit. The law further allows a doctor to recommend more than these amounts if the above amounts do meet he patient's medical needs.

In May of 2008 a California appellate court struck down the part of Senate Bill 420 that set the 8 ounce limit on possession and the 6 and 12 plant limits on cultivation. The court held that these limits were improper amendments to the voter initiative and were therefore unconstitutional. The case was People v. Kelly, decided on May 22, 2008. Mr. Kelly, a medical marijuana patient, was convicted because he had more than 8 ounces of marijuana, 8 ounces being outside the limitation of Senate Bill 420. The appellate court reversed Kelly's conviction ruling that, under the Compassionate Use Act, a medical marijuana patient can lawfully possess as much marijuana as medically necessary.

Therefore, the Kelly case has left the law a little less certain. As the law stands now, having under 8 ounces of medical marijuana is no longer per se lawful. Likewise, having more than 8 ounces of marijuana (or 12 immature or 6 mature growing plants) is no longer automatically a violation of the compassionate use act. It appears that only another voter initiative will be able to set the type of guidelines that Senate Bill 420 provided.

It is critical, therefore, in light of the Kelly case, that medical marijuana patients have their physician state on the recommendation the exact quantity the physician deems medically appropriate.

Senate Bill 420 also required that California counties issue identification cards to patients who wanted them. Many patients, however, don't want to provide their personal information or disclose their status as patients. In L.A. County, the Department of Health charges $153 for a medical marijuana card. They require this fee and a copy of the doctor's recommendation. More information is available at their website: http://publichealth.lacounty.gov/mmip/

Read the entire language of SB420, Health and Safety Code sections 11362.7 to 11362.83.

The medical marijuana law does not protect patients who’s employers give drug tests. The California Supreme Court refused to take action after an employee was fired only because he had failed a drug test at his work. There was no evidence that the patient had used on the job or that it had effected his work performance. (Gary Ross v. Ragingwire Telecom. Inc.)


The enactment of the medical marijuana laws in California, has not done much to ease the antipathy of police and local prosecutors towards medical marijuana patients. In the City of Long Beach, patient advocates lobbied for years for the LBPD to adopt a reasonable policy regarding medical marijuana. Despite achieving some success in September of 2004 with the adoption by the LBPD of a medical marijuana policy, medical marijuana patients are still arrested and prosecuted.

Long Beach criminal lawyer Matthew Kaestner is a Long Beach attorney dedicated to the defense of persons accused of crimes despite their status as medical marijuana patients. Attorney Kaestner has successfully defended clients facing charges of possession, transportation, and possession for sale of marijuana who were medical marijuana patients.

It is critical that medical marijuana patients understand that the medical marijuana laws do not provide absolute immunity from arrest or prosecution. Patients, with valid doctor's recommendations are often cited or arrested for unlawful marijuana activity. However, our California Supreme Court has decided that the medical marijuana laws are a defense that can be raised to combat a prosecution for possession cultivation, or transportation of marijuana. As the law now stands after the Supreme Court ruling, an accused only has to raise the medical marijuana defense with some evidence that it applies, and the prosecution must thereafter disprove the defense. (People v. Mower, 2002.)

Only a doctor's recommendation obtained prior to an arrest or citation for unlawful marijuana activity will provide a defense. (People v. Rigo, 1999.) A verbal recommendation by a physician is sufficient under the law, however, a written recommendation is preferable and is the best way to prevent an unlawful arrest or citation in the first place. The best practice for patients is to keep a copy of their doctor's recommendation in their possession whenever they have possession of marijuana or are in an area where medicinal marijuana is being grown.

Marijuana seized improperly from patients should be returned. In November of 2007, a California Court of Appeal ordered the Garden Grove Police Department to return seized marijuana to a patient. The Court held that the medicine must be given back to the patient even though federal law prohibits dispensing marijuana. Patients may petition the court to return their lawfully possessed marijuana seized by the police and later determined to be lawfully possessed pursuant to the Compassionate Use Act.

A medical marijuana patient who is prosecuted for marijuana activity can use the current medical marijuana laws without being forced to prove that a "serious illness" is involved. Neither judges nor juries may "second-guess" a doctor's determination of medical necessity. (People v. Spark, 2004.)

Any person who needs to use marijuana medicinally should be familiar with the laws governing medical marijuana. And it is always wise to remain silent and request an attorney when the police become involved. If arrested, contact an experienced criminal law attorney promptly.


At one time, Long Beach had over 40 medical marijuana dispensaries. The City of Long Beach held a lottery charging entrants of $14,000 to participate in the lottery and granted license to many of them to run a dispensary. After this plan was found illegal in the California Court of Appeal, Long Beach banned dispensaries in 2012 after the California Supreme Court ruled that municipal entities could outright ban dispensaries.

On February 2, 2016 the Long Beach City Council, after forming an investigative task force, and spending 5 years thinking about how best to allow dispensaries in Long Beach, voted to continue the ban. One council member was quoted as saying “ I would rather have nothing than have a bad something.”

In 2009, the California case of People v. Hochandel, ruled that simple dispensaries may not qualify as a "collective" and can violate California's medical marijuana law.

A lawful cooperative must be nonprofit and follow other dictates of the California's medical marijuana law. A cooperative should not be opened without necessary pre-planning. Prosecution and seizure of medicine and other assets can result from a raid by law enforcement.

Collectives and dispensaries do operate in other parts of Los Angeles County. A list of such locations can be found at: https://weedmaps.com/earth/us/ca/long-beach

It is critically important to know the law regarding medical marijuana inside and out prior to growing, transporting or dispensing medical marijuana. Federal raids of cannabis clubs by the Federal Drug Enforcement Agency (DEA) and Long Beach police have somewhat diminished. However, it is not unusual for a patient, caregiver, or provider of medical marijuana to be arrested and prosecuted.


Most enlightened folks understand that marijuana is regularly used to treat the symptoms of AIDS and cancer. However, marijuana has been one of the most widely used of the medicinal plants for centuries. Modern medicine has also recognized the therapeutic benefits of marijuana. The Journal of the American Medical Association publicly supported medical marijuana as early as 1995 and called for increased research into the uses of marijuana. The Journal noted that marijuana is far less addictive than comparable treatments and very safe.

Marijuana has been proven to reduce nausea, ease pain, treat insomnia, improve mood and increase appetite in cancer and AIDS patients. In addition, marijuana is regularly used to treat chronic pain, multiple sclerosis, migraine headaches, glaucoma, seizures, arthritis, epilepsy, Crohn's disease, fever, neuralgia, cramps and spasms. Marijuana can also serve to reduce the amount of other medications that may be needed to treat certain conditions, as well as reduce the side effects and dosage of other necessary medications in some instances.

To achieve a medicinal effect, marijuana can be smoked, inhaled in the vaporized form, eaten, and applied topically. The exact amount of marijuana that a patient may need depends upon the particular needs of the patient, the nature of the condition being treated, the method of ingestion, and the quality of the marijuana. Eating marijuana will require 3-5 times the smoked dosage. Vaporizing marijuana can require two times the amount of marijuana than smoking.


If you find yourself or a friend or loved one arrested for a marijuana or any offense, it is absolutely imperative that you invoke your right to remain silent and request an attorney before any questioning. Asserting your constitutional rights won't make you "look guilty," it will make you look smart. Asking for an attorney and remaining absolutely silent it is just the correct course of action after any arrest. The police can lie and use aggressive tactics to extract some sort of confession. However, the law requires that the police, DEA, or any other law enforcement agency must obey a request for counsel and cease all questioning thereafter.

After an arrest for either a felony or misdemeanor marijuana offense, the arrestee must be brought to Court within 48 court hours of the arrest if he is in custody. Bail can usually be posted for a more immediate release.

Whenever arrested for a marijuana offense or any other criminal charge, call Long Beach criminal law specialist Matthew Kaestner directly at (562) 437-0200. Mr. Kaestner is a Long Beach criminal law attorney who can give you straight talk about your rights, and help you take immediate action to defend yourself.

Long Beach Criminal Law Specialist Matthew G. Kaestner has over 30 years of experience practicing criminal law. He has handled virtually every type of criminal law case from narcotics offenses to murder, white collar offenses to domestic offenses.

Call Long Beach Criminal Law specialist Matthew Kaestner directly at (562) 437-0200.