Pubdate: Saturday, September 4, 1999
Source: Marin Independent Journal (CA)
Copyright: 1999 Marin Independent Journal
Contact:  150 Alameda del Prado, Novato, CA 94949
Author: Richard Halstead


The Marin County District Attorney’s Office this week issued new guidelines
for deciding whether or not to file charges against individuals possessing
or growing marijuana for medical use.

Under the new protocol, the District Attorney’s Office has pledged not to
file charges if medical marijuana users fulfill six requirements including
growing no more than six mature or 12 immature plants at a time.

But District Attorney Paula Kamena said local police departments have not
formally agreed to abide by the guidelines. That became apparent yesterday,
the day after their release.

A Novato woman said Novato police confiscated and destroyed her four small
marijuana plants yesterday morning after consulting by cell phone with the
District Attorney’s Office.

“I can’t afford to buy the stuff so I was trying to grow it according to
the law,” said Barbara Gardner, who said she showed police a doctor’s
recommendation and a Marin Alliance for Medical Marijuana membership card.
Gardner, who uses marijuana to treat bouts with depression, said none of
her plants stood higher than 18 inches.

The Marin Alliance, based in Fairfax, registers medical marijuana users and
provides legal defense to members when they break the law.

“I think this was a direct result of the guidelines,” said Lynnette Shaw,
founder of the Marin Alliance.

Kamena said she verified that someone from her office read the guidelines
over the phone to a Novato police officer. But she said no one from her
office instructed the two officers who went to Gardner’s home to destroy
her plants.

No one from the Novato Police Department was available for comment.

“The bottom line is that the police chiefs decided it was not proper for
them to sign on,” Kamena said.

Lt. Dennis McQueeny, who heads the sheriff’s Major Crimes Task Force, said
he expects to abide by the protocol. “It’s better than what we had before,
which was nothing,” McQueeny said. “We’ll leave behind what they recommend
six plants.”

Shaw says the new protocol restricts patients from possessing a sufficient
number of plants and labels it “unworkable.” She notes that Oakland, for
example, allows medical users to keep up to 144 indoor plants or 60 outdoor

Growers say that a high percentage of young plants either die or do not
produce buds with significant amounts of THC, the active ingredient in pot.
Only female plants contain high levels of THC, they say.

Shaw is also critical of the District Attorney Office’s requirement that
medical marijuana users register with the Marin County Department of Health
and Human Services.

At last count, the county’s certification program  started in 1997 had
failed to attract more than a dozen applicants.

Critics of the programs have said there is a troubling correspondence
between those who applied and people who later were arrested. Of eight
people who sought a county certificate, four were arrested and another had
his plants confiscated, Shaw said.

“We’re going to continue to boycott the county’s identification program,”
Shaw said.

Kamena said that the names will be kept confidential by the health
department and promises never to subpoena the records unless there is a
claim of someone fraudulently obtaining a card.

Other criteria that marijuana users must meet to avoid prosecution under
the guidelines are:

- - No evidence of other violations of law.

- - All requirements established by Proposition 215, the Compassionate Use
Act of 1996, must be met.

- - Must possess less than a half pound of dried marijuana.

- - Must not be on parole or probation, nor may they have been ordered not to
use, abuse, possess, or transport alcohol or drugs.

Kamena called the guidelines “merely a first step in dealing with a very
complex law, while awaiting some statewide direction from the legislature.”

She said that Proposition 215 did not legalize possession and cultivation
of marijuana for medical purposes. “It only provides an affirmative defense
at trial,” she says. “The district attorney cannot require the police to
follow this guideline.”

Shaw said that some local police departments  Fairfax, San Anselmo, Mill
Valley, San Rafael and, until yesterday, Novato  have been willing to
ignore medical marijuana users.

But until all local agencies sign on, any list of guidelines is pointless,
Shaw said. “There is no uniform application of the law,” Gardner says. “It
just depends on which officer you get  whether you get lucky or unlucky.”

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MAP posted-by: Keith Brilhart