By Aaron Collins

To say the thin green line of marijuana criminality is a little hazy after a new pot law took effect January 1 is like saying that Cheech & Chong became a little famous by making light of pot smoking in the ‘70s. So just what will — and will not — fly these days?

Social attitudes are shifting, economic forces are in play and accordingly the law is changing, too — despite California voters’ recent rejection of controversial Proposition 19 by a slim margin in November. Fifty-three percent of Californians said no to legalized cannabis, while 46% were willing to support it. Even so, a different new law is on the books now.

Effective January 1, possession of 1 ounce or less was downgraded from a misdemeanor to an infraction in a bill signed by former Governor Arnold Schwarzenegger. The maximum fine for the infraction is $100. Pot possession by non-medical users is effectively equivalent to a traffic ticket. Possession up to an ounce could previously have resulted in a criminal record under California law, but no more.

“Gov. Schwarzenegger deserves credit for sparing the state’s taxpayers the cost of prosecuting minor pot offenders,” said National Organization for the Reform of Marijuana Laws (NORML) California Director Dale Gieringer in a prepared statement. “Californians increasingly recognize that the war on marijuana is a waste of law enforcement resources.”

Just Fine

Ironically, Prop. 19, had it passed, would have been stricter than the new law signed by Schwarzenegger for low-level possession situations, leaving in place the misdemeanor possession penalties for public use and smoking in the presence of children. Under the new law, SB 1449 by Sen. Mark Leno (who represents California’s 3^rd senate district, which covers Marin and portions of San Francisco and Sonoma counties), these two instances are now treated as infractions, subject only to fine — not imprisonment.

In his signing statement, the Republican former governor declared his opposition to decriminalizing the recreational use of marijuana and said that he opposed Prop. 19, but added that “in this time of drastic budget cuts, prosecutors, defense attorneys, law enforcement and the courts cannot afford to expend limited resources” in the prosecution of petty pot offenses. Considering that misdemeanor possession arrests rose to 61,164 in 2009, the removal of that number of cases by making them infractions will come as quite a relief to the courts. Given that economics partly drive society’s attitudinal shifts, and that near-term economic prospects appear mixed, Californians might reasonably expect a continuing trend toward devoting fewer resources to pot prosecution.

State, Federal Conflicts

Confusion between the intent and effect of SB 1449 and Prop. 19 is only furthered by contradictory federal law, which remains in effect via the Controlled Substances Act.

The medical marijuana factor also clouds matters of pot legality. “This is a subject of great attention lately,” says Shani Jenkins, Assistant District Attorney for Tulare County. “What I can tell you is that the law is still pretty clear as to medical marijuana. One may legally possess marijuana, within certain parameters, if they have a valid prescription for marijuana. Other than that, it is still illegal to possess marijuana.”

Those acceptable parameters include proof of California residency and possession of up to 8 ounces of usable marijuana and up to six mature plants or twelve immature plants. Specific diseases are named in the law, including multiple sclerosis, HIV and AIDS, cancer, chronic pain and nausea. In December, the California Supreme Court clarified that medical marijuana users in possession of more than the legal limits could use a medical necessity defense in court.

Jenkins also says that Tulare County is pursuing those pot smokers with no legitimate medical need who acquire medical marijuana cards in order to flout the law. “We here at the District Attorney’s office are aggressively prosecuting cases in which individuals have a valid medical marijuana card,” Jenkins says, “but are using that as a cover to illegally sell or transport marijuana. It is akin to someone who has a valid prescription for a controlled substance such as Vicodin, illegally selling or providing their drugs to someone else.” Jenkins says that her agency has prosecuted many such cases. “In addition, as with alcohol or prescription drugs, it is still a crime to drive while under the influence of marijuana,” she points out.

City and County ordinances, too, can create a patchwork of seemingly conflicting medical marijuana regulations. Tulare County has been pursuing a case against a medical pot growing collective near Ivanhoe — a legal operation under state laws — claiming that the land is zoned for agricultural use. Whether a crop like medical marijuana qualifies as an agricultural crop for zoning purposes appears to be at the heart of this case.

Los Angeles is finding that its numerous pot dispensaries have legal muscle as well as political clout, with a recent injunction against its city ordinance limiting medical marijuana dispensaries. In December, a judge’s decision derailed a city ordinance regulating medical marijuana, paving the way for numerous dispensaries to reopen after being forced to shutter operations in 2010. Los Angeles County Superior Court Judge Anthony J. Mohr ruled several parts of the city law as unconstitutional, including the complex process the city intended to use to decide which dispensaries would be allowed.

So the legalities of medical marijuana are still very much in flux, despite initial legalization in 1996 by California voters via Proposition 215, the Compassionate Use Act. However, the trend toward legalization continues, with New Jersey and Arizona becoming the 14^th and 15^th states to legalize medical marijuana as of 2010. Maryland has a law that now permits medical marijuana as a defense in possession cases, while not expressly legalizing medical marijuana.

Interestingly, states from across the political spectrum have legalized medical marijuana, from Montana and Arizona on the right, to Oregon and Vermont to the left. So the trend does not seem to track traditional liberal/conservative assessments of legalization arguments.

New developments in California promise to further the controversies of pot legalization. A new soft drink billed as medical marijuana called Canna Cola is in production. However, its branding and formula resemble a consumer product that one is more likely to find in a supermarket, not just in a medical marijuana dispensary. Furthermore, a bill has been introduced in the California Legislature that would forbid employers from discriminating against employees who have a valid medical marijuana prescription, shifting the debate from a live-and-let-live matter to one of employment law, a much stickier subject.

So while the laws and attitudes are in a cloud of flux, the issues and outcomes around medical marijuana and its relation to the ongoing push for overall pot legalization are anything but clear.

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