Pubdate: Wed, 12 Dec 2012
Source: Spokesman-Review (Spokane, WA)
Copyright: 2012 The Spokesman-Review
Contact:  http://www.spokesman.com/
Details: http://www.mapinc.org/media/417
Author: Thomas Clouse

MEDICAL MARIJUANA DISPENSER'S CONVICTION OVERTURNED

The drug-trafficking convictions of the man who operated Spokane's
first medical marijuana dispensary were reversed Tuesday in a state
Appeals Court ruling that also appears to clear the way for commercial
dispensaries to operate legally in Eastern Washington.

While the case provides needed clarification in state law over how
medical marijuana users can legally fill their prescriptions, U.S.
Attorney Mike Ormsby said federal prosecutors will continue to target
certain operations.

"They are not legal under federal law, regardless of what the state
law says," Ormsby said. "If we found an operating dispensary in
Spokane County or the Eastern District of Washington ... selling a
large volume and located close to a school and meets a number of
factors we have identified, we would not hesitate to take action to
close it down."

Still, defense attorney Frank Cikutovich called the ruling a major
victory for his client, Scott Q. Shupe, who was the first to open a
medical marijuana dispensary in Spokane based on the original 1998
voter-approved law legalizing medicinal use of marijuana.

Shupe "was a maverick. He designed his business based on his and my
interpretation of the full compliance with state law," Cikutovich
said. "He was the first one to put his butt on the line and test it.
My hope is that we can get to the point where this can help the
patients that this law was designed for."

Jen Lorz, co-owner of the Northside Alternative Wellness Center at
4811 N. Market St., said the decision by the Division III Court of
Appeals was great but acknowledged the future of local medical
marijuana dispensaries depends on how federal prosecutors react.

"What we are fighting for is our patients," Lorz said. "We are not
drug dealers. We are legitimate professionals who know what we are
doing and who are helping people get the medicine they need."

In the 2-1 decision, Judges Dennis Sweeney and Teresa Kulik ruled that
Spokane police lacked probable cause to search Shupe's residence and
business and that Spokane County prosecutors lacked sufficient
evidence to justify Shupe's 2011 convictions for drug
trafficking.

But the opinion went further, which was the focus of the dissent by
Judge Kevin Korsmo, as Sweeney and Kulik agreed with Cikutovich that
the language of the law should be interpreted to allow medical
marijuana providers to sell marijuana to one customer at a time rather
than the prosecution's interpretation of providers selling it to only
one person at all.

"We have been waiting for the legal answer and it looks like we
finally got one. I couldn't be happier," Cikutovich said. "The feds
should notice that there are people who need this medicine
legitimately."

Cikutovich said federal authorities previously told him that they
would not interfere with dispensaries that operated under the strict
letter of the state law, which is not related in any way to Initiative
502, the voter-approved law that allows residents to legally possess
an ounce or less of marijuana.

However, within a week of Shupe's conviction in March 2011 federal
authorities sent letters to all other operating dispensaries warning
them of impending legal action if they did not stop. Most dispensaries
shut down but federal prosecutors did indict a handful of others who
continued, Cikutovich said.

Ormsby acknowledged the quandary of voter-passed state law versus
corresponding federal statutes that criminalize possession,
manufacture and distribution of marijuana. As a result, Justice
Department officials are considering legal challenges and official
statements to clarify how they will react to the Washington marijuana
laws.

"The issue has a lot of ramifications, including issues outside of the
marijuana" debate, Ormsby said. "If the state is going to make a
decision to move forward and implement all the provisions of
Initiative 502, they will have to spend significant time and therefore
money. If we intend to challenge the implementation of the laws, it
would be better for the state and taxpayers to let the state know
before that occurs."

As for Shupe, he testified he was selling 10 pounds a week to 1,280
patients at his Change dispensary, formerly located at 1514 W.
Northwest Blvd.

As a result of the decision Tuesday, Cikutovich said Spokane police
will be required to return more than $8,000 in cash and three jars
filled with marijuana that were seized during the arrest.

Shupe never spent a day in prison following his conviction. Instead,
Superior Court Judge Tari Eitzen delayed Shupe's prison term until the
appeal decision, which came Tuesday.

"In this case it was clear you didn't intend to break the law, which
is in a state of flux as we speak," Eitzen told Shupe in April 2011.
"But the jury found you guilty. That's what I'm stuck with."

Cikutovich noted that both state and federal prosecutors in King
County have allowed dispensaries to remain open for the past five years.

"As soon as you cross the mountains, it's a whole different
situation," he said. "It shouldn't be that way when you are in the
same state."
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