Pubdate: Tue, 28 Aug 2012
Source: Arizona Daily Star (Tucson, AZ)
Copyright: 2012 Arizona Daily Star
Contact:  http://www.azstarnet.com/
Details: http://www.mapinc.org/media/23
Author: Howard Fischer

YUMA DEPUTIES ORDERED TO RETURN SEIZED POT

PHOENIX - Sheriff's deputies will have to deliver three-quarters of 
an ounce of marijuana to a California woman if a Yuma County court 
commissioner gets her way.

Lisa Bleich said it's not like she's ordering the deputies to become 
drug suppliers, pointing out that Valerie Okun had a valid medical 
marijuana card when the drugs were seized from her.

The commissioner said all she is requiring is that the property be 
returned to its rightful owner.

Bleich acknowledged that marijuana remains illegal under federal law. 
But she rejected county legal arguments that delivering the drugs to 
Okun would make the deputies guilty of illegal drug distribution 
under the federal Controlled Substances Act.

Now the case is before the state Court of Appeals. And what those 
judges rule about conflicts between Arizona's voter-approved medical 
marijuana law and the federal Controlled Substance Act could set 
precedent for a number of other suits based in the same issue.

Court records show Okun was stopped in early 2011 at a Border Patrol 
checkpoint along Interstate 8.

Attorney Michael Donovan said officers searched her vehicle after a 
dog alerted on it, and found marijuana and hashish.

Rather than charge her under federal laws, the officers wrote up what 
amounts to a citation for violating Arizona drug laws, turning the 
matter over to county officials.

Okun has a medical marijuana card issued in California. And the 
Arizona law honors valid cards from other states, so as a result, 
five months later, the case was dismissed.

Okun then filed for return of her property, with a judge ordering its release.

When Yuma County Sheriff Ralph Ogden refused, the judge ordered both 
sides to submit legal arguments to Bleich.

In what appears to be the first ruling in Arizona of its kind, Bleich 
rejected arguments by prosecutors that federal laws making possession 
and distribution of marijuana a crime override Arizona's 2010 
voter-approved law.

"Congress did not intend to trample on the rights of the state to 
make their own laws pertaining to illegal drugs and medical marijuana 
use," the commissioner wrote earlier this year. "It further implies 
that state laws pertaining to medical marijuana use can coexist with 
federal law without conflict."

Bleich found that a police officer would be violating federal drug 
laws only "if he or she intended to act as a drug peddler rather than 
a law enforcement official."

And citing a ruling from a California appellate court, she said it 
"seems exceedingly unlikely" that federal prosecutors would ever 
arrest a police officer for simply complying with a court order to 
return a patient's medical marijuana.

But Yuma County Attorney Jon Smith said that "doesn't resolve the 
fact that people shouldn't be forced to do things that are otherwise 
illegal under our state and/or federal law."

In arguments to the appeals court, Deputy Yuma County Attorney Edward 
Feheley, citing federal law, wrote, "The sheriff is prohibited from 
delivering marijuana to a person he knows has no right to possess 
marijuana - even for medical purposes."

Feheley also argued the Arizona Medical Marijuana Act has no specific 
provision requiring or authorizing a court to return confiscated marijuana.

Donovan, arguing for return of the drugs, countered that the 
voter-approved law spells out that medical marijuana legally 
possessed "is not subject to seizure or forfeiture."

He warned the judges that if courts do not order the return of the 
marijuana, police could thwart the whole Arizona Medical Marijuana 
Act by simply taking the drugs from those who are otherwise entitled 
to possess them under the state law.'
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MAP posted-by: Jay Bergstrom