Pubdate: Wed, 30 Sep 2009
Source: Recorder, The (CA)
Copyright: 2009 ALM Properties, Inc.
Contact: http://www.law.com/jsp/ca/emailContact.jsp?id=CalLaw_Editor
Website: http://www.law.com/jsp/ca/index.jsp
Details: http://www.mapinc.org/media/652
Author: Mike McKee
Ruling: http://www.courtinfo.ca.gov/opinions/documents/A123591.PDF
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

NOTHING MELLOW ABOUT DISSENT IN MEDICAL POT CASE

In an unusually contentious ruling (pdf) Monday, California appellate 
court Judges Paul Haerle and J. Anthony Kline got in each other's 
faces about whether a judge can order a criminal defendant to stop 
using medicinal marijuana while on probation when the underlying 
crime has nothing to do with pot use. Kline says you can't. Haerle 
says you can, and -- unfortunately for Kline -- Haerle was backed in 
the 2-1 ruling by Justice James Richman.

The opinion focused on Daryl Moret Jr., who pleaded no contest to 
possession of a concealed firearm on the condition he abstain from 
using marijuana, which he claimed a doctor had recommended for 
chronic migraine headaches.

Solano County Superior Court Judge Peter Foor insisted on the 
condition because he had doubts that Moret needed pot for medicinal 
reasons and felt the substance could only lead the 19-year-old -- who 
had also embezzled $2,000 from a former employer and said he found 
the stolen gun in some bushes -- to further crimes.

Moret's other choice? Jail.

"After balancing all these considerations, the trial court determined 
that it would help in 'basically straightening things out' and 'being 
a productive member of the community' that he abstain from using 
marijuana while on probation," Haerle wrote. "Thus, the trial court 
clearly and properly exercised its discretion."

An irked Kline responded by saying the majority opinion "flies in the 
face of the law," "subordinates the will of the people" and is 
"legally untenable."

"This court's [ruling]," he wrote, "permits imposition of conditions 
of probation that are unrelated to the crime of which the defendant 
was convicted, forbids conduct that is not criminal and requires 
conduct that has no relationship to the defendant's future 
criminality. No modern California court has ever done such a thing, 
which is precedent shattering."

Forbidding Moret's use of marijuana for medicine, he added, doesn't 
"serve a reformative or rehabilitative purpose."

Kline also had few kind words for the trial court judge's "suspicion" 
that Moret doesn't suffer from migraine headaches.

"The diagnosis and treatment of medical problems are functions 
assigned to the medical profession," he wrote, "not criminal court judges."

This article first appeared on Legal Pad: A Cal Law blog.
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MAP posted-by: Jay Bergstrom