Pubdate: Mon, 28 Jun 2004
Source: News-Review, The (OR)
Copyright: 2004 The News-Review
Contact:  http://www.newsreview.info
Details: http://www.mapinc.org/media/2623
Author: Christian Bringhurst
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

COUNTY JUDGE DROPS MEDICAL MARIJUANA CASE 	

A judge dismissed a case Friday filed on behalf of a medical marijuana 
grower who claimed the Douglas County District Attorney's Office was 
improperly applying the Oregon Medical Marijuana Act.

Judge Thomas Kolberg ruled that the case, John Doe v. Jack L. Banta, et al, 
was a thinly veiled attempt to get him to interpret the act in a manner 
favorable to Doe so he could avoid prosecution.

Portland attorney Leland R. Berger told the court that his client -- whom 
he declined to identify to protect him from prosecution -- had called the 
Douglas County Sheriff's Office to report his medical marijuana plants had 
been stolen.

Berger said a deputy warned the man that he might be opening himself up to 
prosecution because he had been in possession of more plants than the 
district attorney's office interprets the law to allow.

The office interprets OMMA to mean a primary caregiver is subject to the 
same restrictions for marijuana possession as medical marijuana patients -- 
which is four immature plants, three mature plants, and one ounce of usable 
marijuana per mature plant -- even if the caregiver is approved to grow for 
more than one person, said Deputy District Attorney Jeff Sweet.

If a person is away from the approved growth site, he or she is allowed to 
have only one ounce of usable marijuana.

Kolberg was skeptical that a deputy would advise people against reporting 
crimes simply because they might be opening themselves up to prosecution.

"I can't imagine a law enforcement officer doing that in this county," he 
told Berger.

Kolberg said circuit court judges aren't allowed to give advisory opinions 
on points of law in "hypothetical" situations. If Berger and his client 
wanted to challenge the law, they would have to do so in defending his 
client from any criminal charges he might incur from the district 
attorney's office.

Otherwise, he said, people could rush to court and ask a judge to give a 
ruling on a point of law before they engaged in a potentially criminal act 
to protect themselves from prosecution.

"That's just not allowed," Kolberg said.

"Because he believes the district attorney's interpretation is incorrect, 
he asks the court to render an opinion on how the Medical Marijuana Law 
should be interpreted," Kolberg said in his ruling. "He is hopeful the 
court's opinion will mirror his own and will then, in some manner, bind the 
district attorney in future criminal cases and, specifically, bar him from 
prosecuting Petitioner."

Kolberg said in Oregon all civil actions must be prosecuted in the names of 
the interested parties. He also said he cannot make a ruling on a scenario 
that is likely to take place, but has not actually happened, such as the 
potential prosecution of John Doe.

"No one is preventing Petitioner from reporting the alleged burglary. Until 
he does so, what might happen is a matter of speculation only," Kolberg 
wrote. "A controversy to be justiciable must be immediate and real in order 
to warrant the court's interpretation."

The district attorney's office was represented in the case by Oregon 
Assistant Attorney General Andrew Logerwell. 
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