This is the ALDER case Weeze had mentioned.

1. "pursuant to a lawful prescription"

Adler claims on appeal that a "licensed California doctor pursuant to California law prescribed Reverend Adler cannabis. Furthermore, a licensed Hawai i doctor also prescribed Rev. Adler Cannabis [sic]." Adler, however, is barred from raising this argument by the doctrine of judicial estoppel.

Pursuant to the doctrine of judicial estoppel,

[a] party will not be permitted to maintain inconsistent positions or to take a position in regard to a matter which is directly contrary to, or inconsistent with, one previously assumed by him, at least where he had, or was chargeable with, full knowledge of the facts, and another will be prejudiced by his action.

Judicial estoppel "'partakes . . . of positive rules of procedure based on manifest justice and, to a greater or lesser degree, on considerations of the orderliness, regularity, and expedition of litigation.'" This doctrine prevents parties from "playing 'fast and loose' with the court or blowing 'hot and cold' during the course of litigation."

Roxas v. Marcos, 89 Haw. 91,124, 969 P.2d 1209, 1242 (1998) (citations omitted), reconsideration denied, 1999 Haw.(1999).

During the hearing on Adler's motion to dismiss, he conceded that, because "marijuana is a Schedule I drug that cannot be prescribed, there can be no prescription of marijuana. Technically that cannot happen." He explained, "That's why we used the word 'recommendation' in California, Your Honor. As I mentioned, you cannot prescribe a Schedule I substance. So what the laws have done is make it under a doctor's recommendation, then it shall be a defense, and you're allowed lawfully to possess it." Both the trial court and the prosecution were entitled to rely on the defense's concession that he could not have legal prescription of marijuana. Thus, for this court to examine whether Alder possessed the marijuana pursuant to a lawful prescription would prejudice the trial court and the prosecution because neither addressed this argument during the hearing on Adler's motion to dismiss. Accordingly, we hold that Adler is judicially estopped from raising this argument on appeal.

2. "otherwise authorized by law"

Adler contends that he was "otherwise authorized by law" to possess marijuana under HRS § 712-1240.1. Adler argues that, based on the Full Faith and Credit Clause of the United States Constitution, the trial court was obligated to recognize his authority to possess marijuana under California Health and Safety Code § 11362.5 (1996) [hereinafter Section 11362.5].

Section 11362.5 provides:

(a) This section shall be known and may be cited as the Compassionate Use Act of 1996.

(b)(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:

(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.

(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.

(2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.

(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.

(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possess or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician .

(e) For the purposes of this section, "primary caregiver" means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.

(Emphases added.) In interpreting Section 11362.5, the Supreme Court of California has held that a grant of limited immunity from prosecution also must properly be found in section 11362.5(d), which provides that sections 11357 and 11358 "shall not apply to" qualified patients and primary caregivers
(§ 11362.5(d)), particularly in view of its purpose of prohibiting "criminal prosecution [and] sanction" of such qualified patients and primary caregivers for such crimes (§ 11362.5., subd. (b)(1)(B)).

People v. Mower, 28 Cal. 4th 457, 122 Cal. Rptr. 2d 326, 49 P.3d 1067, 1076 (Cal. 2002) (quotations marks and brackets in original). Both the plain language of the statute and its interpretation by the Supreme Court of California indicate that Section 11362.5 does not grant persons a right to possess marijuana. Rather, the California law grants certain qualified persons immunity from prosecution under California Health and Safety Code §§ 11357 or 11358.

In the instant case, Adler was not prosecuted under the California Health and Safety Code, and nothing in Section 11362.5 prohibits prosecution under applicable Hawai i law. Thus, Section 11362.5 did not authorize Adler to possess or cultivate fifty or more marijuana plants in violation of HRS § 712-1249.5. Therefore, the trial court did not err in concluding that (1) HRS § 712-1240.1 was inapplicable in the instant case and (2) the documents submitted in support of Adler's motion to dismiss were not clearly exculpatory. Accordingly, we hold that the trial court did not err in denying Adler's motion to dismiss.
jamessr Reviewed by jamessr on . Using Pot Card OUT-Of-STATE That's probably an easy question, I'm a California resident, but is a Cali Medical Marijuana Card applicable out of state or in states who have no such laws? Will it get you out of jail for possession in other states? Rating: 5