Pubdate: Fri, 6 Jun 2008
Source: Los Angeles Times (CA)
Copyright: 2008 Los Angeles Times
Contact: http://drugsense.org/url/bc7El3Yo
Website: http://www.latimes.com/news/printedition/front/
Details: http://www.mapinc.org/media/248
Authors: Tim Reiterman and Eric Bailey, Los Angeles Times Staff Writers
Referenced: The decision 
http://www.courtinfo.ca.gov/opinions/documents/B195624.PDF
Cited: Americans for Safe Access http://www.americansforsafeaccess.org
Bookmark: http://www.mapinc.org/topic/Proposition+215
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)
Bookmark: http://www.mapinc.org/find?115 (Marijuana - California)

CALIFORNIA WILL FIGHT COURT RULING ON MEDICAL MARIJUANA

The Appellate Decision Had Struck Down the Law That Specified the 
Amount of Pot Allowed.

SAN FRANCISCO -- State Atty. Gen. Jerry Brown says he will challenge 
a recent appellate court decision that struck down California's 
guidelines on medical marijuana possession and cultivation, leaving 
patients and police wondering how much weed is too much.

Brown said in an interview this week that he would ask the California 
Supreme Court to overturn last month's decision by the state Court of 
Appeal in Los Angeles because it inhibits authorities' ability to 
control abuses while protecting legitimate access to cannabis.

The court ruled that the Legislature in 2003 made an unconstitutional 
amendment to the 1996 voter-approved Compassionate Use Act by 
specifying the amount of marijuana that patients could possess for 
medicinal purposes.

The decision, hailed by some medical marijuana advocates, has not 
only cast doubt on the legislation's standard of 8 ounces of dried 
pot and six mature or 12 immature plants. It has also created a cloud 
of uncertainty over more liberal guidelines adopted by some counties, 
particularly those in the marijuana belt of the North Coast.

Brown, who supports medical marijuana, said the legislation was a 
reasonable approach to implementing a vaguely written ballot measure.

"The proposition is not as clear as we would like," he said. "You do 
not need an unlimited quantity of marijuana for medicine. But what is 
the quantity?"

The marijuana initiative was designed to provide access to patients 
with cancer, AIDS and other ailments. But its execution has created a 
hodgepodge of local marijuana controls.

In some locales, indoor and outdoor marijuana cultivation has aroused 
community backlash over the effect on neighborhoods, public safety 
and the environment.

Law enforcement officials have alleged that drug dealers are hiding 
behind the marijuana law. And medical marijuana advocates are worried 
that abuses by some are threatening the access of deserving people to 
a medicine.

The court decision, in late May, involved Patrick K. Kelly of 
Lakewood, who suffers from hepatitis C, back pains and cirrhosis. 
Kelly had a doctor's recommendation to use marijuana.

But a search of his home in 2005 yielded some marijuana plants and 12 
ounces of dried pot. He was convicted of marijuana possession and 
cultivation after a prosecutor argued that he had more than the 8 
ounces allowed under the state guidelines without a doctor's 
recommendation for more. His sentence: three years' probation and two 
days in jail.

In ordering a retrial, the appellate court found that legislation 
imposing a "cap" on the amount of marijuana was illegal because 
amendments to initiatives can be adopted only through a vote of the people.

Some marijuana advocates greeted the ruling as welcome relief from any limits.

Others and the attorney general's office said the appellate judges 
misconstrued the legislation because it contains no firm caps.

They said the legislation set the six-plant threshold but allowed 
local governments or a patient's personal physician to set higher limits.

Authorities and several advocates said that without rules on 
quantity, police officers must figure out on their own how much 
medical marijuana is reasonable.

Kris Hermes of Americans for Safe Access, a patients group, said the 
absence of guidelines could prove "detrimental in the long run. . . . 
It's all left up to the discretion of the police and courts, and that 
is not good."

Modesto Police Chief Roy Wasden, a member of the California Police 
Chiefs Assn. board, said it would be a balancing act.

"Obviously, someone with 100 pounds probably would not be viewed as 
having a reasonable amount," he said. "And probably someone with a 
few ounces would."

California Narcotic Officers Assn. lobbyist John Lovell likened the 
situation to a return to the Wild West.

When the appellate decision came down, the attorney general's office 
was close to issuing guidelines on medical marijuana for police who 
are concerned about criminal growing and dispensing, and for 
marijuana advocates who don't want narcotics officers breaking down 
their doors.

"We are trying to give guidance to patients as to how they can 
lawfully cultivate, acquire and possess," said Special Assistant 
Atty. Gen. Jacob Appelsmith. "And for law enforcement, we are trying 
to give them guidance."

In Humboldt County, where the growing guidelines are 100 square feet 
of leaf canopy and as many as 99 plants, Dist. Atty. Paul Gallegos 
said of the court ruling: "It changes everything. It . . . means no 
legal limitations."

The conundrum comes as another pot-tolerant county grapples with a 
revolt over its limits. A measure that was on Tuesday's ballot in 
Mendocino County would roll back a 25-plant cap that applied to 
recreational pot as well as medical marijuana.

With thousands of votes still to be counted Thursday, the repeal 
effort was ahead 52% to 48%.

Thirteen states have legalized medical marijuana, although the 
federal government does not recognize such laws. Only Washington has 
not spelled out the quantity of marijuana a patient can possess or 
grow; that state allows patients a 60-day supply. 
- ---
MAP posted-by: Richard Lake