Mower Motion for Medical Cannibas
The California Supreme Court in People v. Mower (2008) held that a defendant can move to dismiss an indictment pre trial in a 995 motion (discussed above) on the basis that there was no probable cause to believe that the defendant was not a qualified patient entitled to possess or cultivate marijuana. Defendant must simply raise a reasonable doubt regarding a charge of unlawful possession as to their possession of the drug with a physician’s prescription. In sum, medical marijuana patients should have to present the same evidence with the same burden of proof as patients with prescription drugs. PC 11362.5(d) decriminalized the possession of marijuana for qualified patients pursuant to the Compassionate Use Act. Once a reasonable doubt has been raised that the defendant did not violate that Act, the court can exercise its discretion under 1385 to dismiss the count in the interests of justice.
As the medical marijuana defense negates element of unlawful possession, a defendant is only required to raise a reasonable doubt about guilt. This is what is known as an affirmative defense that relates directly to the defendant’s guilt or innocence. Part of this includes a right to present substantial exculpatory evidence by calling its own witnesses at a preliminary hearing.
As the medical marijuana defense negates element of unlawful possession, a defendant is only required to raise a reasonable doubt about guilt. This is what is known as an affirmative defense that relates directly to the defendant’s guilt or innocence. Part of this includes a right to present substantial exculpatory evidence by calling its own witnesses at a preliminary hearing.