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Judge Dismisses Charges, Ordered Marijuana Returned
Pubdate: Tue, 24 Apr 2001
Source: San Diego Union Tribune (CA)
Copyright: 2001 Union-Tribune Publishing Co.
Contact: http://www.uniontrib.com/
Details: http://www.mapinc.org/media/386
JUDGE DISMISSES CHARGES, ORDERED MARIJUANA RETURNED
A judge dismissed charges and ordered marijuana returned to an Oregon man
who carried it for ostensible medical use. "I didn't think I was doing any
groundbreaking," Justice of the Peace Michael Herbolich said Saturday. "I
saw a guy who had a medical problem."
Frederic Henry Starkweather, 56, of Gold Beach, Ore., was arrested by U.S.
Customs inspectors on March 19 when he crossed the Mexican-U.S. border at
Douglas carrying 41 grams of marijuana.
Entering as a pedestrian, he declared his allergy medicine but not the
marijuana. He admitted having it when Customs Inspector Dan Mellon noticed
a bulge in Starkweather's right pocket.
Authorities said, however, that Oregon allows medical marijuana patients to
have no more than an ounce when away from home. Starkweather had an ounce
and a half.
"He clearly broke the law," said Kathleen Smail, manager of health care
licensure and certification for the Oregon Health Division.
Cochise County Sheriff Larry Dever also was upset.
"It is my belief that the order to release contraband is, in actuality, an
order to commit a felony and therefore is not valid," Dever told the court
by letter.
"Please be informed that I have given firm instruction to my personnel that
no illegal substances are to be released in the future, regardless of a
court order to do so."
Herbolich called it "a unique case," comparing it with when Americans bring
prescription drugs across the border without a valid prescription. "We're
not talking about somebody coming across the line with a truckload" of
marijuana, Herbolich said. "It was hardly a significant amount.
"I'm not on any crusade here," he added. "I'm not trying to legalize pot. I
see people every day with anywhere from 40 to 100 pounds (and send them to
jail)", the judge said.
Starkweather had shown his medical marijuana card to Mellon and said he did
not purchase the drug in Mexico but had it when he entered that country.
On March 20, Herbolich dismissed the charge in Douglas Justice Court after
Starkweather produced his medical marijuana program card. The judge then
ordered sheriff's deputies to return Starkweather's marijuana.
Deputies balked and asked for an opinion from the Cochise County Attorney's
Office. They were told to comply with the judges order.
"Basically, what I said is if the judge orders you to give it back to him,
you do what the judge orders you to do," said Deputy County Attorney Ed
Rheinheimer. "I didn't know exactly what the circumstances were ... but I
assumed Herbolich would have good reason."
Rheinheimer, who noted that Arizona voters also have approved a medical
marijuana law though it's different from Oregon's, said he advised deputies
to contact the federal Drug Enforcement Agency.
Marijuana growth and possession remains illegal under federal law.
Deputy Sean Gijanto said he was told by Sierra Vista DEA Agent Barry
McColley that the agency would not get involved in a personal-use marijuana
case and to comply with the judge's order.
Dever, meanwhile, has asked Presiding Judge Stephen Desens of Cochise
County Superior Court for clarification.
California voters in 1996 approved Proposition 215, which allows people to
use marijuana for pain relief and other medical purposes if they have a
note from a doctor saying it will help their condition.
Arizona voters approved a law in 1996 that allows doctors to prescribe pot
for select conditions. However, there has been no enabling law.
Oregon's law, approved in 1998, does not allow doctors to prescribe
marijuana, only to affirm that their patients have a specific medical
condition - terminal cancer, glaucoma and AIDS among them. That enables
patients to obtain a medical marijuana card and to grow and use a specified
amount of the drug to relieve pain and nausea.
Starkweather, who could not be reached for comment, is one of more than
2,000 Oregonians who have such a card. It could not be learned what his
specific medical condition is.
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