County Sheriff

CALIFORNIA HIGHWAY PATROL
 
6. CONTROLLED SUBSTANCES ARRESTS. 
a. Policy.(1) Arrests for offenses involving possession of controlled substances as
defined in the California Uniform Controlled Substances Act (Division 10 of the
Health and Safety [H&S] Code) should be handled to conclusion provided
supplemental investigation is not required. Notwithstanding this policy, Division
chiefs may require individual Areas to refer controlled substances arrests to
local authorities in the event coordination problems are encountered.
(2) Arrests requiring supplemental investigation or resulting in the confiscation of
large quantities of controlled substances are to be referred to the appropriate
narcotics task force or allied agency. These cases may qualify for seizure and
asset forfeiture. They should be handled in accordance with the policies and
procedures Contained in Chapter 2 of HPM 81.5, Drug Programs Manual.
(3) Pursuant to Section 11591 H&S, upon the arrest of a public school
employee for controlled substances offenses, enumerated in Section 11590
H&S, commands shall ensure that notifications are made by telephone to the
Superintendent of Schools of the school district employing the arrestee, within
one business day after the arrest. Commands shall also give written notice of the
arrest to the Commission on Teacher Credentialing and to the Superintendent of
Schools in the county were the person is employed, within one business day after
the arrest. .
(4) Pursuant to Section 11591 H&S, upon the arrest of a private school employee
for controlled substance offenses enumerated in Section 11590
H&S, commands shall ensure that notifications are made by telephone to the
private school authority employing the arrestee within one business day after the
arrest. Commands shall also give written notice of the arrest to the private school
authority within one business day after the arrest
(5) Commands shall ensure that standard operating procedures are
established for the above types of arrests. Notifications made pursuant to
these requirements shall be documented in the arrest report.
b. Procedure.
(1) Commanders are to establish procedures to assure coordination of
controlled substances arrests with allied agencies in cases where a desire to
become involved is expressed or where good judgment indicates a need for
HPM 100.69 1-14
such involvement, such as with large quantities of drugs, evidence of drug
manufacturing operations, or large sums of money linked to drug transactions.
(2) Commanders unable to develop satisfactory referral arrangements with allied
agencies shall notify Division.
(3) If satisfactory arrangements cannot be made at the Division level,
Assistant Commissioner, Field shall be informed by memorandum.
7. MEDICAL MARIJUANA ARRESTS.
a. Supplemental Compassionate Use Act of 1996.
(1) On November 5, 1996. California voters approved Proposition 215 (the
Compassionate Use Act of 1996). With its passage, Proposition 215 added
Section 11362.5 H&S.
(2) In part. Section 11362.5 H&S states it was enacted “to ensure seriously ill
Californians" the right to “obtain and use marijuana for medical purposes"
where .deemed appropriate" and “recommended by a physician” and “to ensure
[those] patients and their primary caregivers who obtain and use marijuana . . .
are not subject to criminal prosecution . . ." Section 11362.5 H&S further states
that Sections 11357 H&S (possession) and 11358 H&S (cultivation) “shall not
apply to a patient" or the “patient’s primary caregiver" who so possesses or
cultivates the marijuana. Thus, the intent of the proposition was to authorize
physician recommended medical use of marijuana to seriously ill persons.
b. Senate Bill 420 - Medical Marijuana.
(1) General.
(a) On January 1, 2004, Senate Bill (SB) 420 (Medical Marijuana) became
statute. With its passage, S8 420 added Article 2.5 (commencing with .
Section 11362.7 H&S) and requires the State Department of Health
Services (DHS) to establish and maintain a voluntary program for the
issuance of state medical marijuana identification cards to qualified patients
and to establish procedures under which a qualified patient with an
identification card may use marijuana for medical purposes.
(b) Therefore, any law enforcement agency or officer shall not refuse to
accept a state medical marijuana identification card issued by DHS unless
the state or local law enforcement agency or officer has reasonable cause
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to believe that the information contained in the card is false or fraudulent, or
the card is being used fraudulently.
(c) Section 11362.71 (e) H&S states “no person or designated primary
caregiver in possession of a valid state medical marijuana identification card
shall be subject to arrest for possession, transportation, delivery, or cultivation
of medical marijuana..."
(d) Section 11362.7 H&S also allows local cities and counties to establish
their own limits of possession of medical marijuana which could exceed the
state limit of eight ounces of dried marijuana or no more than six mature or
12 immature marijuana plants per qualified patient.
(2) Definitions:
(a) Marijuana: Pursuant to Section 11018 H&S. marijuana is defined to
include "every. . . mixture or preparation of the plant. . .” which would
therefore include hashish, concentrated cannabis, and any such
marijuana plant derivative. Section 11362.5 H&S makes no distinction
regarding the above mentioned forms of marijuana. Therefore, the
Section 11362.5 H&S defense may be applicable to the more
concentrated forms of marijuana.
(b) Medical Marijuana: Pursuant to Section 11362.7 H&S, only the dried
mature processed flowers or buds of the female cannabis plant or the
plant conversion (e.g., hashish, hash oil) shall be considered when
determining allowable quantities of medical marijuana.
(c) Attending Physician: An individual who possesses a license in good
standing to practice medicine or osteopathy issued by the Medical Board
of California or the Osteopathic Medical Board of California and who has
taken responsibility for an aspect of the medical care, treatment,
diagnosis, counseling, or referral of a patient and who has conducted a
medical examination of that patient before recording in the patient’s
medical record the physician's assessment of whether the patient has a
serious medical condition and whether the medical use of marijuana is
appropriate.
(d) Qualified Patient: A person who is entitled to the protections of
Section 11362.5 H&S, but who does not have a valid state medical
marijuana identification card.
HPM 100.69 1-16
(e) Qualified Person with a valid identification card: An individual who is a
qualified patient who has applied for and received a valid state medical
marijuana identification card.
(f) Primary Caregiver: An individual “designated” by a qualified patient or
by a person with a state medical marijuana identification card who has
"consistently assumed responsibility for the housing, health, or safety of
that patient or person.”
(g) State Identification Card: A state document issued by DHS that
identifies a person authorized to engage in medical use of marijuana and
the person's designated primary caregiver. The state medical marijuana
identification card (see Annex H) shall contain the following information:
1 A unique user identification number of the cardholder;
2 The date of expiration of the identification card;
3 The name and telephone number of the county health department
or the county's designee that has approved the application;
4 DHS will maintain an internet website (www.calmmp.ca.gov) that
will enable state and local law enforcement officers to have immediate
access to information necessary to verify the validity of the state
medical marijuana identification card.
(h) Local identification card: A document issued by a governmental entity
(e.g.. county/city) (see Annex H).
(i) Physician’s recommendation: A document issued and signed by a
licensed physician which may contain the physician's name, telephone
number, address, and physician license number.
c. Policy.
(1) Continuous efforts shall be directed toward the enforcement of marijuana
related laws.
(2) It is the policy of the CHP that officers shall not conduct traffic enforcement
stops for the primary purpose of drug interdiction in the absence of probable
cause or reasonable suspicion to believe the motorist or an occupant of the
vehicle is involved in illegal drug-related activity.
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(3) When a Section 11362.5 and/or 11362.7 H&S exemption is claimed and the
individual possesses a state/Iocal governmental medical marijuana .
identification card (designating whether the individual is a patient or primary
caregiver), or a physician’s written recommendation officers shall:
(a) Review the state medical marijuana identification card for validity and
contact the local dispatch/communications center for access to the DHS
internet website (wvvw.calmmp.ca.gov)
(b) Review the local (city/county) governmental card for validity and contact
the telephone number on the card.
(c) Review the physician's written recommendation for validity. The document
may contain the physician's name, telephone number, address, and physician
license number.
(d) If the state medical marijuana identification card is valid, and the
individual is within the state limits designated under SB 420, (eight ounces
of dried marijuana, or the plant conversion, and no more than six mature or
12 immature marijuana plants) the individual Is to be released and the
marijuana is not to be seized.
Note: The state (SB 420) limit of eight ounces does not apply if there
is a higher limit in the locality in which the Individual is stopped.
"Authorized local limits SUPERCEDE the state limit.”
(e) If an individual claims Section 11382.5 or 11362.7 H&S and possesses
an identification card from another governmental entity (e.g.. city/county
identification card), or a written recommendation from a licensed physician,
officers shall use sound professional judgment to determine the validity of
the person's medical claim. Based on the totality of the circumstances
present, if the officer reasonably believes the medical claim is valid, and the
individual is within the state/IocaI limits (whichever applies) the Individual
is to be released and the marijuana is not to be seized.
(f) If an individual has valid medical marijuana documentation, but is over
the state/local limit (whichever applies), enforcement action shall be
taken and all the marijuana shall be seized.
(g) Those individuals claiming a need for the marijuana should be advised
to file a motion with the appropriate court seeking an “Order of Return.”
Area commanders should apprise the district attorney's office of the seizure
and potential for such an order being sought.
HPM 100.69 1-18
(h) Thoroughly investigate and document the incident. Officers should be
particularly alert for (and document) indications of non-medical use of
marijuana such as pay/owe sheets, large quantities of marijuana,
packaging for sale, and large amounts of cash. Section 11362.77 H&S
states that a qualified patient or primary caregiver may possess no more
than eight ounces of dried marijuana per qualified patient. In addition, a
qualified patient or primary caregiver may also maintain no more than six
mature or 12 immature marijuana plants per qualified patient. However,
Section 11362.77 H&S states that counties and cities may establish their
own limits.
(i) It is the responsibility of Area commands to meet with local district
attorney(s) and court officials to determine guidelines for authorized
possession amounts for cities and counties within their jurisdiction.
(4) Discussion:
(a) Section 11362.7 H&S affects only certain persons under a narrow set of
circumstances. In general, this section protects:
1 The qualified patient who uses marijuana for medicinal purposes
upon recommendation from a physician and possesses a valid state
medical marijuana identification card. .
2 The primary and designated caregiver who provides the marijuana
to the patient and possesses a valid state medical marijuana
identification card.
3 The physician who provides either written or oral recommendation
for the use of medicinal marijuana.
(b) The standard search and seizure liability rules remain applicable to
the enforcement of marijuana related violations. Reasonable suspicion is
required for detention and probable cause is required for search and
seizure. Officers should be particularly alert for (and document)
indications of non-medical use of marijuana such as pay/owe sheets,
large quantities of marijuana, packaging for sale, and large amounts of
cash.
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(5) Criminal Violations Unaffected by Sections 11362.5 and 11362.7 H&S.
(a) Section 11360(8) H&S - Sale (only). Although Proposition 215 made
reference to the cultivation of marijuana, there was no defense created for
the sale of marijuana. Thus, even if for eventual medical use, there is no
Section 11362.5 and/or 11362.7 H&S application to an observed sale of
marijuana.
(b) Section 11359 H&S - Possession for Sale. Section 11362.5 H&S
defenses are not applicable to “possession for sale” of marijuana. Although
Section 11362.5 H&S failed to define quantitative limits. Section 11362.7
H&S establishes the limit of eight ounces per qualified patient/caregiver,
and possession of large amounts of marijuana is indicative of such
prohibited use. If an individual exceeds the state limit/local limit, the officer
should investigate appropriately. Where large quantities of marijuana are
observed, officers should further investigate for other indicia of sale, such
as pay/owe sheets and packaging for sale.
Note: The state (SB 420) Iimit of eight ounces does not apply if there is
a higher limit in the locality in which the individual is stopped.
"Authorized local limits SUPERCEDE the state limit."
(6) Criminal Violations Affected by Sections 11362.5 and 11362.7 H&S.
(a) Section 11357 H&S - Possession of Marijuana. Sections 11362.5 and
11362.7 H&S apply only to the medical use of marijuana. Non-medical use
receives no protection.
(b) Section 11358 H&S - Cultivation of Marijuana. Pursuant to
Sections 11362.5 and 11362.7 H&S, qualified patients and primary
caregivers in possession of a valid state medical marijuana identification
card may cultivate marijuana for “personal” medical use by the patient.
Commercial cultivation of marijuana, however, is not protected. (The
Statute permits six mature or 12 immature plants; however, local limits
may be higher.) Caregivers, as previously defined, must have a direct
relationship with the individual patient. Thus, their ability to cultivate is
limited. Likewise. “c1ubs” that show a profit or that can be shown to
produce more than necessary for medical use are not protected.
(c) Section 11360(a) H&S – Transportation, Furnishing or Giving Away. -
Patients and primary caregivers may assert a Section 11362.5/11362.7
H&S defense for transporting, furnishing, or giving away, etc., of marijuana.
HPM 100.69 1-20
Exhibit Type Number of Items/Ounce
Dried female buds – 1 sandwich bag 1 ounce
Dried female buds – 1 Gallon freezer bag 1 pound = 16 ounces
Officers should be alert for indications of mass production such as
excessive quantities and special packaging. Utilizing Section 11362.5 H&S
as a defense applies only to "personal” use. The “caregiver" defense is
limited by the necessity of having a direct relationship with a patient and
possessing a valid state medical marijuana identification card. As such, the
patient must have obtained a recommendation from a physician that
marijuana is needed for treatment of a medical condition. Thus, large
quantities indicative of something other than medical use are outside the
applicability of Sections 11362.5 and 11362.7 H&S. The defense is also not
applicable to the Section 11360(a) H&S prohibition regarding the sale of
marijuana.
(d) Section 11362.5/11362.7 H&S permits the limit of eight ounces per
qualified patient/primary caregiver, however local limits may be higher.
Measurable amounts as described in Section (e) are general estimates
only. Officers should only seize the medical marijuana if the amounts are
obviously in excess of the allowable limit. Further questions regarding
descriptions and measurement procedures for larger quantities should be
referred to the local Narcotics Task Force or Field Support Section.
(e) Measuring Procedure - Medical Marijuana. The following table lists
typical marijuana exhibits and the number of items contained in an ounce.
These amounts are general estimates only.
(7) Annex 1-C contains several scenarios which may be helpful in
understanding how to apply the provisions of Section 11362.5/11362.7 H&S.
d. Supplemental Marijuana Procedure - (Not Medical Marijuana).
(1) Depending upon the offense, persons involved with marijuana and who do
not possess a valid state medical marijuana identification card may be arrested
and charged as follows:
(a) A felony, Sections 11357(a), possession of concentrated cannabis,
and/or 11360(a) H&S, transport, import, sell, furnish, administer, or give
away marijuana, or offer to do any of the above.
(b) A misdemeanor with mandatory cite and release provisions,
Sections 11357(b) and/or 11360(b) H&S, possessing, transporting, or giving
"
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away not more than 28.5 grams (one ounce) of marijuana (other than
concentrated cannabis).
(c) A misdemeanor with optional cite and release provisions.
Section 11357(c) H&S, possessing more than 28.5 grams of marijuana
where neither the amount nor the circumstances indicate an intent to sell.
(d) A misdemeanor with mandatory cite and release provisions.
Section 23222(b) VC, driving a motor vehicle while possessing not more
than one ounce of marijuana.
NOTE: The optional “Booking Required" box on the CHP 215 shall not be
used for violations under (b) and (d) above. These are not "recordabIe"
offenses as defined in GO 100.28, Criminal Fingerprinting and the
JUS 8715, Disposition of Arrest and Court Action.
(2) The mandatory cite and release provisions of the marijuana law apply to
juveniles as well as adults.
(3) To provide reasonable flexibility in any county where the district attorney
has not provided specific direction, marijuana offenses should be handled in
accordance with the following guidelines:
(a) All felons shall be physically arrested as prescribed by law (see
paragraph 2.a.[1] of this chapter).
(b) A person charged with possessing, transporting, giving away, or driving
a motor vehicle while in possession of marijuana in any amount of 28.5
grams or less must be cited and released after being satisfactorily identified
and signing a CHP 215. (Section 11375[b] H&S.)
1 If the amount in these cases does not exceed 28.5 grams, cite and
release is mandatory.
2 If subsequent weighing establishes the amount to b8 in excess of
28.5 grams, the complaint may be amended to the appropriate section.
(c) A person arrested for simple possession of marijuana where the
amount is clearly in excess of 28.5 grams should be physically arrested.
However, the cite and release option may be considered in cases where a
court appearance is reasonably assured.
HPM 100.69 1-22
Exhibit Type Number or Items/Ounce
Marijuana Cigarette, slender “matchstick” type,
3/16” diameter.
83+ cigarettes
Marijuana Cigarette, more commonly encountered
homemade cigarette size, 5/16” diameter.
53+ cigarettes
Marijuana Cigarette, commercial cigarette emptied
of tobacco and refilled with marijuana, 5/16”
diameter.
31+ cigarettes
Marijuana, bulk, contents of 35mm film canister,
weight varies with composition and density.
4+ canisters
Marijuana, bulk, “Cigarette Box,” weight varies with
composition and density.
3+ boxes
(4) Measuring Procedure.
(a) When weighed, and the amount of marijuana is in excess of 28.5
grams, an appropriate tolerance should be applied to allow for scale
Inaccuracies, any container weight, and possible dehydration of the
substance.
(b) Visual determination of marijuana in the amount of 28.5 grams may
vary widely due to individual expertise, material density, and container
differences. The following table lists typical marijuana exhibits and the
number of items contained in 28.5 grams. The figures presented are not
absolute values; however, they represent averages based on weighing a
large number of exhibits and may serve as a guideline.
e. Destruction of Controlled Substances. There are two methods to dispose of
controlled substances. Some allied agencies may accept controlled substances
from the CHP as a courtesy, which they will burn with their drugs at no charge, or
the Department may conduct its own burn. Areas shall follow the procedures
contained in HPM 70.1 relating to the disposition of seized hazardous materials and
controlled substances or court ordered releases of medical marijuana.
8. HATE CRIME ARRESTS.
Definition. A "'Hate Crime" or "Bias Crime" is defined by the Federal Bureau of
Investigation as any criminal offense committed against a person or property which is
motivated, in whole or in part, by the offender's bias against a race, religion,
ethnic/national origin. or sexual orientation. The California Department of Justice
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