Pubdate: Thu, 30 Oct 2008
Source: Helena Independent Record (MT)
Copyright: 2008 The Associated Press
Contact:  http://helenair.com/
Details: http://www.mapinc.org/media/1187
Author: Katie Oyan, Associated Press
Referenced: The Montana Supreme Court decision 
http://drugsense.org/url/5MNm1GFB
Cited: Patients and Families United http://www.mtmjpatients.org/
Cited: Montana ACLU http://www.aclumontana.org/
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)

COURT SIDES WITH CONRAD MAN IN MARIJUANA CASE

The director of a statewide medical marijuana advocacy group is 
calling a Wednesday decision by the Montana Supreme Court a "big 
victory" for the state's patients and voters.

In a 6-1 ruling, the high court said District Judge Laurie McKinnon 
overstepped her authority with two sentencing conditions she placed 
on Timothy Nelson of Conrad.

Nelson was charged in May 2006 after authorities searched his house 
and found evidence of a marijuana growing operation. He suffers from 
a degenerative disc disorder and was later accepted into Montana's 
medical marijuana program.

In February 2007, Nelson pleaded no contest under a plea agreement to 
criminal possession or manufacture of dangerous drugs.

During sentencing, McKinnon expressed concerns about Nelson's 
marijuana use and the fact that he was raising two children. She 
eventually gave him a three-year deferred sentence subject to 20 conditions.

Nelson filed an appeal challenging two of those conditions: an order 
than he not possess marijuana except in prescription pill form, and 
an order that he comply with all state and federal laws. He was 
joined by the American Civil Liberties Union Foundation of Montana 
and the advocacy and support group Patients and Families United.

Nelson argued that McKinnon ignored the intent of the Montana Medical 
Marijuana Act and treated his medical marijuana use like it was 
illegal. He said the sentencing conditions unduly restricted his use 
of marijuana and needlessly required him to suffer physical pain.

The Medical Marijuana Act, passed by voters in November 2004, allows 
patients to use marijuana if they suffer from diseases like cancer, 
glaucoma and HIV, or if they have chronic pain.

Nelson also argued McKinnon exceeded her authority in requiring him 
to obey all federal laws, since federal law prohibits marijuana 
possession and allows no exceptions for medical marijuana use.

Attorneys for the state said Nelson didn't become a participant in 
Montana's medical marijuana program until after his arrest, and his 
history suggested he may be addicted to the drug. They said Nelson 
admitted he had used marijuana illegally for years and sought 
protection under the Medical Marijuana Act only "after he got caught."

The Supreme Court sided with Nelson, reversing the two sentencing 
conditions and remanding the case for further proceedings. Justice 
Jim Rice dissented.

The high court said state law allows qualifying patients to possess 
up to six marijuana plants and one ounce of "usable" marijuana.

"In limiting Nelson to the ingestion of marijuana in pill form, and 
requiring him to have a physician's prescription to do so, the 
District Court ignored the clear intent of the voters of Montana that 
a qualifying patient with a valid registry identification card be 
lawfully entitled to grow and consume marijuana in legal amounts," 
the Supreme Court said.

Tom Daubert of Helena, director of Patients and Families United, said 
the ruling was the high court's first in a medical marijuana case.

"We're very pleased," Daubert said. "We think this decision is a big 
victory not only for the state's suffering patients, but also for 
voters, because it affirms the voters' decision."

The ruling also affirms three fundamental points, Daubert said.

The first is that for participants in Montana's medical marijuana 
program, "marijuana is a legal medicine that should be treated no 
differently than ordinary prescription drugs," he said. The second is 
that the prescription-pill form of marijuana is not the same as 
regular marijuana.

And the third important point the ruling makes "is that Montana has 
every right, as do other states, to adopt its own policy on this 
issue," Daubert said.

Betsy Griffing, legal director for the Montana ACLU, also lauded the 
ruling, saying it recognizes the "full force and effect of the 
Montana Medical Marijuana Act." 
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MAP posted-by: Richard Lake