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Tuesday, August 14, 2012

What Would You Show The Judge & Jury?

This is what every person closely involved with Medical Cannabis Collective activities should ask oneself because increasingly police will state during an encounter, “Show me what you’d show the judge.”   

While one should never say much during a law enforcement encounter, having proper documentation in a Compliance Binder on hand at the time of the encounter can do the talking for you.

PAN offers Medical Cannabis Compliance Seminars to help Collectives and all their operations stay safe.  Below are some things to consider when preparing documents for the Collective and off-site providers. 

Articles of Incorporation, State Seller’s Permit, Business License(s), Other requisite permits, i.e., Tobacco Seller’s Permits – To avoid unnecessary scrutiny from local authorities,  Collectives* should  hold all necessary permits and licenses and pay all requisite taxes. 

Patient and Caregiver Collective Membership Applications/Registration/ Agreements – Any and all persons involved with the operations of a Collective including cultivation, processing, storage, testing, transport, dispensing, administration and management should be a legally qualified patient or caregiver** under State law and be a registered member of the Collective.  Collective Membership Agreements may also include the organization’s rules, policies, guidelines and reasons membership may be revoked to further demonstrate compliance with closed-loop membership and activities, and a non-diversion policy.

Collective Cultivation Agreements, Collective Transportation Agreements, Medical Cannabis Processing Agreements, Medical Cannabis Testing Agreements - Collective members that produce, process, store, test and transport medical cannabis on behalf of a Collective should be able to account for the amount of cannabis present by the number and need of the patients being served.  These providers should be able to demonstrate a direct relationship with their Collective(s)***/patients and all parties agree to abide by the law.  Agreements should be severed upon any reasonable suspicion that illegal activity is taking place by any party.  

Other Documentation – Depending upon the circumstances, one’s Compliance Binder may also include letters of reference and support, thank you letters, community memberships, awards and acknowledgements or other types of ‘character references.’

Multiple Copies – Be prepared to then make multiple copies of your binder to be kept in the right places and with the right people.

Recordkeeping – “Non-profit operations” are considered acceptable by California law enforcement.  Should this become an issue, expect to be audited.  Persons involved in the medical cannabis profession are expected to only make what is ‘reasonable’ for their time and expenses and to pay requisite taxes.  Consult a good accountant to establish clear recordkeeping and tax history and make sure to understand IRS code 280E. 


Patients and caregivers involved in collective cultivation, processing, testing, transportation and dispensing run the risk of criminal prosecution, whether local or federal.  The general concern is quantity.  When providing goods and services for a collective, the quantity of cannabis on hand is generally greater than that for personal use putting these Collective members in the position of ‘proving’ that all cannabis is by and for legally qualified patients only. 

While State medical cannabis laws are not protection from Federal interference,  with preparation, patients, caregivers and their collectives can demonstrate that all cannabis related activities are conducted in the spirit of State law.

Having proper records and documentation at the time of arrest may assist the defendant in having a speedy trial, which has demonstrated to largely benefit defendants.  

While these precautions are not protection from Federal prosecution, proper documentation at the time of a DEA encounter may help determine if Federal authorities choose to file charges or not.  Smash and grab raids suck but they are better than Federal prosecution and prison.   

In California our voter-approved law is very murky and the GUIDELINES FOR THE SECURITY AND NON-DIVERSION OF MARIJUANA GROWN FOR MEDICAL USE August 2008, while not law, is regarded by law enforcement as the set of guidelines for determining legal medical marijuana from illicit drug activity.  For purposes of collectives the guidelines mainly focus on: closed-loop, patient-to-patient, collective member activities; State taxes and non-profit operations. 

Some things to know:

No amount of paperwork will prevent arrest.  If a cop chooses to arrest you, he will, no matter what.  However, arrest does not always mean prosecution.

There are no sure things, not even in court.  Even with the best defense, some judges are just impossible, making for lengthy court cases and appeals.

Make sure you know your rights during a law enforcement encounter.  96% of all criminal convictions come from what you say in the first 5 minutes of a law enforcement encounter.

You are only as safe as those around you.  If someone else along the chain is conducting illegal activity it may lead to investigations of other collective members/activities.  Know who you are working with.

PAN offers legal training for Collectives – Law Enforcement Encounter Training & Raid Preparedness Seminar.  “This is the most valuable training I’ve ever had!” – from dozens of participants

* All of the above also pertains to Medical Cannabis ‘Cooperatives.’
**  While legally a voluntary program, providers of goods and services to their Collectives are encouraged to get the California State Medical Marijuana ID Card. 
*** While not law, there is debate among law enforcement and law makers regarding ‘one patient, one collective,’ meaning a patient or a caregiver can only be a member of one collective at any one time and therefore only provide goods and services to one collective. Working with multiple Collectives requires good record keeping and careful attention to detail.
Contact PAN to set up your seminar or training.
Be Safe!!

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