Quick Hits (page 2)
A Major Medical Marijuana Victory
By: Bud Life Staff
Justice was served on March 16, 2004 in the County of Fresno (California) when Mr. and Mrs. Ainsworth, both qualified medical marijuana patients, were exonerated and their felony case was completely dismissed.
Their attorney, William McPike, said "you can't prosecute innocent people. This is no different than prosecuting the bona fide owner of property for receiving stolen property which is factually and legally his to begin with. Prosecution is prohibited."
McPike filed a demurrer which is a legal process that, according to McPike, "must be filed and decided before arraignment." The demurrer McPike said "simply stated that the Ainsworths were qualified marijuana patients and in view of that fact they have a legal right to possess, cultivate and use marijuana according to California law." Superior Court Judge Alan Simpson, sustained McPike's demurrer without leave to amend and subsequently granted the motion to dismiss -- with prejudice, which tells the prosecuting attorney that no charges may be refiled in the case. Or as McPike said "No second bite at the apple for the DA."
There was no testimony offered during the hearing and none was given. As McPike put it "no jurisdiction is no jurisdiction." "The Ainsworths obtained justice and their freedom" he added.
This ordeal started in September when the Ainsworths called the Clovis Police Department to report that teenagers were climbing over their fence and stealing the buds off their marijuana plants. Officers responded and Officer Mejia advised them on how to secure the medical grow. Neither Mr. nor Mrs. Ainsworth were arrested at that time. Both had shown their recommendations from their physician to the responding officers.
The next day that all changed. The Ainsworths were arrested at their home by narcotics officers of the Clovis Police Department. Clovis Police had obtained a search warrant after reviewing the recommendation from their doctor, William Turnipseed, M.D. The police wrongly concluded that the recommendation must indicate that the cultivation of medical marijuana was authorized. Further, the Ainsworths were facing felony enhancements because they legally owned a shotgun that was found, loaded, during the search at their residence. Hence the felony enhancement for the use of a weapon in the commission of a felony (cultivation).
As McPike stated "the doctor's recommendation was used for probable cause of illegal marijuana growing when nothing could be further from the truth. The doctor's approval is the exculpating fact, it may not be the basis to find probable cause of criminal activity. "
On the face of things it appeared that Officer Mejia tried to enforce Proposition 215 but was apparently overruled by his fellow officers.
As McPike explained "since the passage of Proposistion 215, The Compassionate Use Act of 1996, there is no jurisdiction to prosecute qualified medical marijuana patients in California. When there is no jurisdiction the court may not proceed, unless it does so in error."
"This procedural defense is very similar to the civil motion for summary judgment" he added.
Judge Alan Simpson admitted, "I don't see how we are ever going to arraign these people."
McPike added "if the ruling had gone the other way we had a writ of prohibition ready to file."
The day prior to this ruling, the Ainsworths filed their damage claims against the City of Clovis, the Clovis Police Department, Narcotics Officers Havlik, Smith, Sullivan and Sparrow.
Mrs. Ainsworth cried after the judge exonerated her and husband Gary. "You are free to go" stated Judge Simpson.
After the ruling the judge had a bench conference. The prosecuting attorney confirmed to Judge Simpson that no appeal will be filed. "Law enforcement needs to know that this will happen again and again" the prosecutor said.
McPike said that both the judge and DA were very fair men who recognized patient rights and that justice must be served.
As it turns out the Ainsworths had a great defender as well.
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Growin' Our Own (page 2)
California's Newest Medical Marijuana Law
By: Elmore Stone
SB-420. Such a really cute bill number. It stands for Senate Bill 420. And, as we all know, 420 is 'the' code to fire up that joint or get that bong going and savor some righteous weed. But, does this mean that all Californians can smoke pot whenever they so choose? Not even close. Then what on earth could it possibly mean? That, friends and neighbors, is the question.
According to the California Legislative Counsel's digest the law "would authorize the [California] Attorney General to set forth and clarify details concerning possession and cultivation limits, and other regulations, as specified." Further, "The [law] would also authorize the [California] Attorney General to recommend modifications to the possession or cultivation limits set forth in the [law]."
There are quite a few other things this new law does and I do not intend to even attempt to try and cover them all. Just the high or low points of this new law, depending on how you look at it.
I personally think that the biggest or most important point has already been stated by legislative counsel. The "set forth and clarify details concerning possession and cultivation limits" clause. Why, you may ask, is this important? It is important for the simple reason that under Proposition 215, the Compassionate Use Act of 1996, also known as Health & Code section 11362.5, there is no limit on the amount a qualified patient can possess, cultivate or use. And that, boys and girls, has got all of California's law enforcement agencies' panties in a bunch.
It appears that Prop. 215, though not nearly as long as SB-420 and written in English unlike SB-420 which is written in legalize, is quite clear and to the point. Indeed, the following is taken from Prop. 215:
"Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician."
Shall not apply. Did you catch it? Relating to the possession and cultivation, the punitive statutes shall not apply to a qualified patient or caregiver. Hence, any amount of weed in either possession or in cultivation, as long as the person is either a qualified patient or caregiver, is legal. And that is why law enforcement has their panties in a bunch.
To put it another way, since the passage of Prop. 215, in November of 1996, police no longer have probable cause to believe that a person in possession or cultivation of marijuana is violating the law. Period, end of story.
I got an email from a friend a few months ago who really enlightened me on the lack of probable cause point. So let me share the text of the email with y'all:
"Reasonable suspicion and probable cause
"It seems to me that it seems to be that:
"a. Pre Prop. 215, police basically had ipso facto reasonable suspicion (Terry v. Ohio 392 U.S. 1) that a person was either (1) using, (2) in possession or (3) cultivating marijuana in violation of California Health and Safety laws.
"b. Based upon the foregoing, police would also have ipso facto probable cause to believe, in a warrantless arrest (Beck v. Ohio 379 U.S. 89) situation, that a person was either (1) using, (2) in possession or (3) cultivating marijuana in violation of California Health and Safety laws.
"c. Post Prop. 215, both ipso facto reasonable suspicion and probable cause have evaporated. As such and before an intrusion can be made upon a person for using, possession and/or cultivation, police must have something *more* than seeing the weed if you will. The reason is simple; marijuana is legal for a specific class of resident of California. Further, as *no* amount of plant or marijuana is specified as 'how much is enough' or 'how much is to much', within the law, the something more cannot be mere amount of plants or pot.
"d. Based upon the above, police no longer have *any* reasonable suspicion to detain a person for possession, cultivation and/or use of pot just because they 'see' the weed. Additionally, should the patient and/or caregiver provide, though *not* at all required, a copy of his or her doctor's recommendation for pot, *all* probable cause to arrest the person has disappeared (up in smoke) and so has the legal authority to seize the medicine.
"e. Should a patient and/or caregiver have a verbal recommendation or simply not provide the recommendation to police, police still have *no* probable cause to arrest the person and seize the medicine -- without something *more* -- because marijuana is *legal* for a specific class of resident. Plus, under medical privacy laws, both federal and state, a doctor *cannot*, without subpoena, disclose any medical information about the person to police."
Not only does it sound good to me, it just makes absolute sense. Where there is no probable cause, police cannot arrest. Additionally, marijuana is not an illegal drug. It is, without a doubt, a prescription, if you will, drug. I like that. I really do.
As I have said or, more accurately, written before I am not a lawyer. Don't want to be one. Still and all, what my friend wrote just makes sense. However, be on the safe side, run it past your lawyer and see what he or she says.
Therefore, one of the main bones of contention between Prop. 215 and this new law, SB-420 is the amount of pot a qualified patient can have in possession or be growing.
As you have read, Prop. 215 places no limit on the amount in possession or in various stages of cultivation. But what about SB-420? Does it specifically state an amount? You bet your bippy it does. Here is what SB-420 has to say on the subject:
"(a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient.
"(b) If a qualified patient or primary caregiver has a doctor's recommendation that this quantity does not meet the qualified patient's medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient's needs.
"(c) Counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limits set forth in subdivision (a).
"(d) Only the dried mature processed flowers of female cannabis plant or the plant conversion shall be considered when determining allowable quantities of marijuana under this section."
Joy oh joy. Under Prop. 215 there was no question as to the amount which was deemed to be legal except, of course, in the minds of law enforcement. But under SB-420 there is a listed amount. Eight ounces of bud and no more than six mature or 12 immature plants. This is bad news all the way around.
But wait you say, what about the seemingly limitless amount which could be possessed or grown consistent with patient needs? That is very true says I. There is just one little tiny obstacle which has got to be overcome. That obstacle is probable cause. Since the passage of SB-420, police now have probable cause to search and arrest if they believe the patient is exceeding the amounts stated in SB-420.
In an ideal world the police, with warrant in hand, would knock on the patient's door and basically state that they had a search warrant because they believed the patient was exceeding the amount of weed in possession or cultivation. The patient in turn would produce a document from his or her doctor stating that the patient could have as much as he or she needed due to the type of illness the patient has. The police would then say thank you very much for clarifying the situation, tip their hat and head back to the police station. That, I say again, is in an ideal world.
The sad reality is that police, since the passage of Prop. 215, have had and continue to have a pattern of conduct which is in direct contravention with the law. Arrest and let the courts sort things out. I have actually read newspaper stories quoting chiefs of police and county sheriffs saying on the record those very words -- arrest and let the courts sort things out. Even though that is not a court's job.
Therefore, why would anyone think that police will change their pattern of behavior? Indeed, with the passage of SB-420 police once again appear to have a semi-legitimate probable cause for search, seizure and subsequent arrest.
Another problem which SB-420 brings to the party is that counties and cities may increase the amount of weed a patient may possess or be cultivating. This is great, just fucking great. Talk about mass confusion? You got it. California has 58 counties. Can you imagine buying a pound of weed in Oakland, which is in Alameda County, and the patient lives in Riverside, which is in San Bernadino County. A mere 400 plus miles and numerous counties away. The patient may be legal in both Alameda and San Bernadino County but illegal in one or more of the counties he or she must travel through to get back home. It is a humongous circle jerk with the patient being the pivot man. Oh no, in this regard SB-420 does not in anyway clarify Prop. 215.
To add more fuel to the funeral pyre SB-420 has not been implemented. But it is now the law say you. We don't have the money to implement it says California Department of Health Services. And there you have it. No money ... no honey. Go directly to jail. Do not pass go, do not collect $200.00 dollars. And naturally the only people who will go directly to jail are the qualified patients who this latest abomination was designed to clarify and protect. Yet, and I could be very wrong about this though I don't think I am, I have the strangest feeling that police and prosecutors are going to use SB-420 to their benefit. Over the limit benefit that is. Obscene is what it actually is.
There is, I believe, one little jewel in this abomination titled SB-420 and that is getting a state medical marijuana I.D. card and adhering to its limitless confusion and quantity cap of weed is "wholly voluntary." And that "a patient entitled to the protections of Section 11362.5 of the Health and Safety Code need not possess an identification card in order to claim the protections afforded by that section."
I read that to mean:
(1) a qualified patient does not need to join this program and that
(2) if a qualified patient does not join the program the qualified patient still enjoys the protections under Prop. 215.
That is contained in the findings and declarations of the California Legislature. Thus, a non-SB-420 qualified patient has all of the rights and none of the liabilities as a SB-420 qualified patient. Again, run that past your lawyer. I mean, what the hell, I have an opinion on just about everything. And I'm writing that opinion here. To digress just a tad and for a second ask me, just ask me my opinion about gun control laws. My opinion is simple -- one shot, one kill - that is gun control. Meanwhile, back to this story.
So, if the upshot of this whole fiasco was to clarify existing law the legislature did a piss poor job of it. If the upshot was to define a set of probable cause rules the finding and declaration statement just shot probable cause, for a non-SB-420 qualified patient anyway, dead square in the ass. If the upshot was an attempt to turn a legal right into a privilege, a license, only time will tell. Lastly, if the upshot was to create mass confusion the legislature succeeded admirably.
I can tell you this much, I ain't a dog. I don't need no stinking license.
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Pipeline (page 2)
Patients Seek Contra Costa Cannabis Club
By: Bruce Gerstman (Contra Costa Times)
OAKLEY - Tanya Anderson took nearly 100 pills each week to control her health, weakened by AIDS. The drugs caused a problem: They made her vomit the food she attempted to swallow. She dropped from 150 pounds to 96.
Her body deteriorated further. Then, Anderson tried marijuana.
She said she never had an interest in marijuana, but found that smoking a little with meals restored her appetite.
"It's keeping me alive long enough to raise my kids," said Anderson, the mother of an 8-year-old boy and 12-year-old girl.
But Anderson and others like her in Contra Costa County (California) have a hard time getting what they consider essential medicine. She and her partner, Darrell Tatar, who has HIV, must travel more than 40 miles to a cannabis club in Oakland.
The situation is not likely to change soon, county officials say. Unlike Oakland or San Francisco, Contra Costa officials say they have not heard much support for the medical marijuana movement.
California is one of nine states that permit the use of marijuana for medical purposes. Since voters approved a state ballot measure legalizing medical marijuana in 1996, "pot clubs" have popped up in California cities including San Francisco, Hayward, Los Angeles and Santa Cruz.
But not in Contra Costa County. In Oakley, Anderson said neighbors and other parents never discuss medical marijuana. She said they consider marijuana alongside other drugs associated with crime.
"It's just not something that people talk about," Anderson said. "I don't know if it's the small town frame of mind -- maybe that's what it is."
Another distinction between Contra Costa and Alameda counties is a difference in law. Last year, California adopted a law regulating the amount of medical marijuana that patients can possess. The law allows patients to keep 8 ounces of marijuana for medical use. But it also gives each county and city the authority to establish a higher limit. About 15 counties and five cities have; most allow patients to have between 1 to 3 pounds each.
Neither Contra Costa, nor any city in the county, has modified the law, according to Americans for Safe Access, an organization that promotes medical use of marijuana.
William Dolphin, the organization's communication director, said that while the law is "woefully inadequate" for people who grow their own plants, it may allow enough for people who purchase medical marijuana from clubs.
Anderson agreed, but said the 80-mile round-trip drive is difficult.
"Some days I get out of bed," Anderson said. "Some days I don't because I can't get comfortable."
Patients like Anderson need an easier way to get their medicine, said Chris Farnitano, a staff physician for Contra Costa Health Services. Farnitano writes notes that help his patients purchase cannabis from clubs.
"I do think there is a need for a cannabis club in Contra Costa County," he said. "A lot of our patients have a hard time getting to Alameda County."
Farnitano said some of his patients depend on marijuana to stay alive. If AIDS patients fail to keep down their medicine, the virus can mutate and develop a resistant strain, he said. Patients get sicker and the virus wears away their bodies faster.
"It's probably the most critical factor -- whether they can keep their medicine down," Farnitano said. "Marijuana for some patients really can be life-saving."
The county's top health official agreed that cannabis should remain available to people who need it for medical reasons, but he said obtaining it is easy enough now.
Wendel Brunner, county director of public health, said the fact that marijuana clubs don't exist in Contra Costa County isn't a public health risk. He added that he has not heard of residents indicating an interest in starting one.
"It reflects more cultural issues rather than a problem," he said. "I haven't noticed a hostility to medical marijuana; it just doesn't have the public focus."
Supervisor Mark DeSaulnier said he's heard nothing from constituents about the lack of cannabis clubs or the limits included in the state law. He said he would be willing to reconsider allowing a club depending on recommendations from county health officials.
"I'd take the advice of medical professionals and see what they think," he said. "From a humanitarian perspective, I don't think (a cannabis club) is too much to ask for."
Police, meanwhile, say they will follow the law.
"Whatever the prevailing law is, that's what we're going to enforce," said Barry Garfield, chairman of the Contra Costa County Police Chief Association.
Russell, a 49-year-old Pittsburg resident who spoke on the condition that his last name not be used, takes marijuana to manage pain.
Surrounded by the comforts of artwork and furniture in his home, Russell said he experiences pain all day.
He lives with several health conditions, one that has left a web of scars that run across his abdomen -- the result of his appendix bursting when he was a boy. The scars torment him with pain and twist his bowels.
"I've been so sick here, sometimes I can't make it to Oakland," Russell said. "There's no support in this area."
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Dakota Joseph Arts