Policy Text
Policy
449Fremont Police Department
Medical Marijuana
449.1 PURPOSE AND SCOPE
The purpose of this policy is to provide members of this department with guidelines for investigating
the acquisition, possession, transportation, delivery, production or use of marijuana under
California’s medical marijuana laws.
449.1.1 DEFINITIONS
Definitions related to this policy include:
Cardholder - A person issued a current identification card.
Compassionate Use Act (CUA) (Health and Safety Code § 11362.5) - California law intended to
provide protection from prosecution to those who are seriously ill and whose health would benefit
from the use of marijuana in the treatment of illness for which marijuana provides relief. The CUA
does not grant immunity from arrest but rather provides an affirmative defense from prosecution
for possession of medical marijuana.
Identification card - A valid document issued by the California Department of Public Health to
both persons authorized to engage in the medical use of marijuana and also to designated primary
caregivers.
Medical marijuana - Marijuana possessed by a patient or primary caregiver for legitimate medical
purposes.
Medical Marijuana Program (MMP) (Health and Safety Code § 11362.7 et seq.) - California laws
passed following the CUA to facilitate the prompt identification of patients and their designated
primary caregivers in order to avoid unnecessary arrests and provide needed guidance to
law enforcement officers. MMP prohibits arrest for possession of medical marijuana in certain
circumstances and provides a defense in others.
Patient - A person who is entitled to the protections of the CUA because he/she has received
a written or oral recommendation or approval from a physician to use marijuana for medical
purposes or any person issued a valid identification card.
Primary caregiver - A person designated by the patient, who has consistently assumed
responsibility for the patient’s housing, health or safety, who may assist the patient with the medical
use of marijuana under the CUA or the MMP (Health and Safety Code § 11362.5; Health and
Safety Code § 11362.7).
Statutory amount - No more than 8 ounces of dried, mature, processed female marijuana flowers
(“bud”) or the plant conversion (e.g., kief, hash, hash oil), and no more than six mature or 12
immature marijuana plants (roots, stems and stem fibers should not be considered) (Health and
Safety Code § 11362.77).
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449.2 POLICY
It is the policy of the Fremont Police Department to prioritize resources to forgo making arrests
related to marijuana that the arresting officer reasonably believes would not be prosecuted by
state or federal authorities.
California’s medical marijuana laws are intended to provide protection to those who are seriously
ill and whose health would benefit from the use of medical marijuana.
However, California medical marijuana laws do not affect federal laws and there is no medical
exception under federal law for the possession or distribution of marijuana. The Fremont
Police Department will exercise discretion to ensure laws are appropriately enforced without
unreasonably burdening both those individuals protected under California law and public
resources.
449.2.1 ILLEGAL POSSESSION OF MARIJUANA
The Fremont Police Department will enforce marijuana laws when possession is deemed not
within the scope of medical marijuana laws.
Possession of over one ounce of concentrated cannabis, i.e., "the separated resin, whether crude
or purified, obtained from marijuana" (Health & Safety Code § 11357(a)), may be prosecuted as
either a felony or a misdemeanor. Officers should follow established procedures, arresting for and
charging this offense as a felony.
Possession of over one ounce of unconcentrated marijuana is a misdemeanor and is punishable
by a maximum six-month jail sentence (Health & Safety Code § 11357(b)). Officers should follow
established procedures, arresting for and charging this violation as a misdemeanor.
Possession of less than one ounce of uncontentrated marijuana (Health & Safety Code § 11357(b)
or Vehicle Code § 23222(b)) is an infraction, but one which will not be subject to arrest and booking.
(a)Officers who discover marijuana contraband which is one ounce or less and where
investigation determines further action is appropriate, should issue a Notice to Appear
(traffic citation) for the violation unless the amount is so small as to be unusable. If
the amount is so small as to be unusable, the marijuana will be confiscated and no
citation will be issued.
1.The officer taking one ounce or less of marijuana and issuing a Notice to Appear
(field citation) will complete a police report.
2.Officers taking marijuana from subjects and not issuing Notices to Appear (field
citations) will write a police report covering the incident (e.g., as is done in vehicle
search incidents).
3.The marijuana contraband taken will be brought to the station and stored.
Contraband taken in connection with the issuance of a citation will be marked
and stored as evidence. Marijuana contraband taken which is of such a small
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quantity as to be unusable, will be marked for destruction in a manner prescribed
by law.
4.If a large amount of marijuana is confiscated, the complete seizure must first
be photographed. As it is no longer necessary to store the entire seizure for
evidence, the officer should retain a sample large enough for