Pubdate: Thu, 03 Mar 2011
Source: Mail Tribune, The (Medford, OR)
Copyright: 2011 The Mail Tribune
Author: Sanne Specht, Mail Tribune


A Medford man says the courts are practicing medicine without a
license by denying him access to medical marijuana while he's on probation.

Joshua Brewer, 22, was convicted by a Jackson County jury in June for
the unlawful manufacture and possession of marijuana. Brewer, who has
a medical marijuana card, was sentenced to 60 days in jail for growing
more marijuana than his card allowed. Brewer is appealing his
conviction, even as he serves a three-year term of post-prison

"I am fighting my conviction, and I am fighting to use my medication,"
Brewer said.

Brewer is being denied use of his medical marijuana because the
Jackson County Community Justice Department does not recognize it as a
legal treatment, even though it was prescribed by doctors.

If Brewer violates the terms of his probation, he could be sent to
prison for two years, he said.

"I have four different doctors' notes," Brewer said. "(The probation
office and the courts) are practicing medicine without a license. If
you've got the doctors' notes, you've got them. I should be allowed to
take my medicine."

Nate Gaoiran, project manager for Jackson County Community Justice,
said Brewer's probation requires him to "violate no law," he said.

Marijuana is still listed as an illegal drug under federal law, so
Brewer - as with anyone on probation in Jackson County - cannot use
marijuana, he added.

Brewer said he and his doctors have agreed he should use medical
marijuana over prescription opiates to ease chronic pain, the result
of injuries to his hand sustained in a vehicle accident.

"They had me on 1,000 milligrams of Vicodin. The next step was
Oxycontin. I'm not going to take Oxycontin. No way," said Brewer. "I
have three kids to take care of. I can't be a zombie."

Gaoiran said the pill form of THC is recognized as a prescription. But
inhaling or ingesting marijuana is not, he added.

"Marijuana is not recognized as a legal prescription by definition,"
Gaoiran said.

The department also has no ability to monitor the amount of medical
marijuana a parolee may be using, he added.

"How many times are they using throughout the day? Are they abusing?
We can't really monitor that," Gaoiran said.

Portland attorney Leland Berger, who assisted in drafting the Oregon
Medical Marijuana Act, briefly represented Brewer in this case. Berger
on Tuesday declined to speak specifically on Brewer's probation
situation, but said this is a common problem for medical marijuana
users who are caught up in the justice system.

Brewer's best hope may be in overturning his conviction on appeal.
Berger said he does not expect any new laws to address this specific
issue in the immediate future.

Currently several counties in Oregon set conditions for probationary
release that prohibit the use of medical marijuana. The probation
departments have stated they do not have the desire or ability to
monitor medical marijuana patients who are parolees, Berger said.

"Some counties are getting around this by placing (the offender) on
unsupervised probation," he said.

Gaoiran said the probation department in Jackson County still
regularly places drug offenders on supervised probation and he does
not see that changing.

Cases like Brewer's may be able to present an argument that the
probation rules are "a violation of the patient/physician
relationship." Berger said.

These types of cases may also violate the 8th Amendment, Berger

"It could be construed as cruel and unusual punishment if you deny a
person their necessary prescription medicine when other options such
as opiates are not appropriate or effective or if the side-effects are
intolerable," he said.

Brewer is not currently taking any medication for pain relief, he

"Right now I'm not on nothing," Brewer said. "I'm refusing the
opiates. I'm pretty much living with the pain every day."

Brewer's June 2 sentencing came after months of legal maneuvering and
a protest by members of the National Organization for the Reform of
Marijuana Laws.

Brewer's public defender, Michael Bertholf, asked former Jackson
County Circuit Judge Ray White to dismiss all charges, arguing Brewer
did not violate state law and that the judge had not instructed the
jury about medical marijuana laws.

Brewer and two other medical marijuana cardholders were growing
marijuana at their home when Brewer was arrested on Sept. 27, 2009.
Bertholf said the plant in question had been harvested just days
before the raid, and about half of the plant seized was not usable

The judge agreed to dismiss weapons and endangering charges but ruled
the possession and manufacturing charges would stand, saying it would
be up to the jury to determine how much of the marijuana was usable.

A handful of NORML members stood outside the courthouse in August,
protesting Brewer's conviction and promising to seek donations to appeal it. 
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