Happy 18th Birthday Miley! Time to Get High?

Driving to work on Friday morning, I happened to be tuned to KROQ and heard a story about a video of Miley Cyrus going to town on her favorite piece of smoking paraphernalia. Although Kevin, Bean, Ralph and company were reveling in what seems to be the rapid downward spiral of another teenage superstar, it occurred to me that, ever since Seth Rogen and James Franco’s daring “did-they-or-didn’t-they” promotion for stoner action-comedy Pineapple Express during the 2008 MTV Movie Awards, celebrities have become increasingly open about their use of a certain medicinal/recreational herb.

First, Olympic hero Michael Phelps was photographically compelled to admit to “engag[ing] in behavior which was regrettable and demonstrated bad judgment” (but which made for greatjokes about Phelps’ Olympian lung capacity and munchie-induced 12,000-calorie-a-day diet). Then Zach Galifianakis memorably — and hilariously — illustrated the subject matter of the California Proposition 19 debate on Real Time With Bill Maher. Now Miley and her “tobacco water pipe” — full of what her reps say was merely the California-legal hallucinogen salvia(and our eyes roll now) — has prompted one blogger to agonize over whether she or Phelps is “the bigger idiot” (spoiler alert: Miley wins).

Perhaps neither Miley nor Zach realize that Proposition 19 failed, but marijuana use remains illegal in California. In fact, depending on the quantity of cannabis in a person’s possession, it can still be prosecuted as a felony. So the obvious legal question is: could a celebrity caught smoking dope on camera be prosecuted? The short answer is, theoretically, yes…but don’t bet on it actually happening.

A District Attorney looking to make a name for him or herself by prosecuting one of these smokey celebrities would have two big problems. First, short of a Phelpsian mea culpa, how do you know the person on the tape is actually smoking pot? As soon as the Miley tape hit TMZ, her people came out and said she was smoking salvia (which is legal). Hard to do much with that (unless, of course, her BFFs are as loyal as Demi Lovato’s and rat on her). Galifianakis, on the other hand, took great pride in the fact that he was smoking pot on national television. So, assuming that Galifianakis’ publicist doesn’t quickly concoct a story about Zach smoking “clove cigarettes” (wink wink nudge nudge) to make a creative political statement, maybe the overeager DA could clear the first hurdle in Zach’s case.

The second problem is California’s medical marijuana statutes. Even though possession and use remain illegal, authorized medical use is a complete defense to the charge. In order to assert this defense, the person using pot must have a medical use card issued by a licensed doctor (conveniently, roughly 400 licensed specialists in the field have congregated on the Venice Boardwalk alone). Of course, those cards are supposed to be issued only to people with legitimate medical problems that can be treated with the good herb. (No, Miley, being an 18 year-old teen phenom is not a legitimate medical problem, notwithstanding what Lindsay might have told you.). Also, there are limitations on the amount that can be possessed or used by someone with a medical card, although I seriously doubt that either Miley’s bong hits or Zach’s joint would exceed those limitations (that Michael Phelps, on the other hand…). So, if either Miley or Zach have a medical use card, they have an airtight defense (unless, of course, the feds decide to come after them).

In practice, though, you’re probably more likely to see Zach cited for violating some more mundane regulations — on smoking inside a public building California. The medical marijuana laws do not authorize a person with a card to smoke indoors; the same restrictions that apply to smoking cigarettes apply to smoking pot (a pity for struggling restaurateurs who could probably benefit from hungrier customers). So Zach, next time, take it outside.

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