Quick Hits (page 3)
Judge Dismisses Pot Conviction
By: News staff (Fairbanks Daily News-Miner)
A Fairbanks judge ruled the Alaska Constitution guarantees a local man the right to possess marijuana for personal use in his home.
In a decision rendered last week, Superior Court Judge Richard Savell dismissed the Fairbanks man's conviction for pot possession, ruling that a 1975 Alaska Supreme Court decision legalizing personal marijuana use by an adult in their home is still the law.
Savell agreed with arguments made by an attorney for Scott A. Thomas, 42, who was charged with three counts of felony fourth-degree misconduct involving a controlled substance for allegedly growing pot plants in a Tonsina Drive residence last summer.
The case went to trial in May and the jury found Thomas guilty of one count of a misdemeanor charge of sixth-degree misconduct involving a controlled substance for possessing 2.6 ounces of marijuana.
Lawyer Bill Satterberg immediately filed a motion for Savell to dismiss the guilty verdict based on an argument that the law under which Thomas was convicted was not constitutional as determined by the controversial 1975 state Supreme Court decision made in Ravin v. State.
The decision made it legal for adults to possess marijuana in their homes for personal consumption as long as the amount of the drug didn't exceed enough to constitute "an intent to deliver."
Four ounces of marijuana or more was considered the intent to deliver threshold when the decision became part of the state's criminal code, but state law has since placed the amount at eight ounces.
The justices ruled in Ravin that possession of pot by an adult in their home was allowed as a fundamental constitutional right to privacy. However, a 1990 voter initiative changed state law to make possession of any amount of marijuana in any location illegal.
In Thomas' recent case, the defense argued that the portion of the law prohibiting possession of marijuana for personal consumption by an adult in their home is unconstitutional.
"A direct conflict in the law exists between the right to privacy guaranteed under the Alaska Constitution and the statutory prohibition ... which criminalizes the personal use of marijuana by an adult in the privacy of the home, regardless of the quantity of the prohibited substance," reads a portion of Thomas' motion to dismiss his conviction.
Savell granted the motion on June 25, writing in pen under his signature of approval that "Ravin stands."
Jim McLain, a legal clerk in Satterberg's law office who drafted the motion for dismissal, called the decision significant.
"My understanding of it is that if Ravin is still the law, then marijuana is still legal," said McLain, a former attorney.
He said Savell's decision does not necessarily set precedent, "although in reality it may be indicative of what other judges in Fairbanks do."
McLain added that he expects a more broad-scale debate to develop soon about whether Alaska's marijuana possession law is constitutional. McLain said he believes that the 1990 voter initiative that criminalized all pot use in the state is not binding, considering voters do not have the power to change the constitution through the initiative process.
In a 1998 Alaska Law Review article that McLain included in his motion, author Andrew Winters also argued that Alaskans have a constitutional right to possess marijuana in their homes.
"Ultimately, the limited actual enforcement of private marijuana possession means both Ravin and the initiative that attempted to invalidate it have a great deal of symbolic value. Ravin is a symbol that Alaska should be proud to endorse, a symbol of the value that Alaska places on personal autonomy," Winters wrote in his conclusion.
It's possible that the District Attorney's Office could appeal Savell's decision. The Distract Attorney assigned to the case was not in his office Thursday and unavailable for comment.
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Growin' Our Own (page 3)
Stepped up Attacks on Marijuana Medicine
By: Bud Life Staff
The California Medi-juana War Update.
This report covers stepped up attacks against marijuana patients by the cops and prosecutors. Background: in California, petitions were successfully circulated to get the Compassionate Use of Marijuana medicine law before the voters. After the 1996 November general election this became state law. The law is Health & Safety 11362.5. It is specific that persons with a physician's recommendation for use of marijuana as medicine is a right.
Bud Life attempts to cover the lack of recognition of this law and the continued arrests and prosecutions of patients. It is a fact that patients are discriminated against. What can you as a patient or a defense lawyer can do to enforce patient rights? The legal right to use marijuana medicine, for the most part, is completely ignored throughout California.
Remember, the government takes away our rights and replaces them with licenses and privileges. This erosion and intentional conduct has been ongoing since the founding of our great nation. For example, you don't have the right to travel without a driver's license. You do have the right to travel, if you walk. Does this make sense? Protection of your rights is a tug of war fought by able defense attorneys who try to get your rights recognized. But for these legal freedom fighters, we would certainly live under a totalitarian regime. Judges are paid by the system. Most judges in California were governor appointed as opposed to being elected. Federal judges are all appointed. After going to court, one may wonder if constitutional rights exist and about judges' loyalties. Is the constitution fact or fiction? You can always get convicted - unless you provide an adequate legal defense.
Marijuana Medicine and the Law
Since 1996, (under California state law) qualified patients have been legally able to obtain, possess and to use marijuana as physician recommended medicine. The code section states that this is a right. It also includes provisions for growing this medicine. A qualified care giver responsible for the housing, safety, and health of another may possess, grow and provide marijuana to qualified patients. Check with your doctor and attorney for specific details, as you may not qualify.
Federal law holds that marijuana has no medical value and the feds have gone after California patients and care givers. This pits the feds against the California voters and patient rights. Take the WAMM, case in Santa Cruz County, where the DEA raided a patient cooperative. Defense advocates like Ben Rice of Santa Cruz and Santa Clara University Law Professor Gerald Uelmen sued the DEA for the raid on the WAMM cooperative crop. Wo/Mans Alliance was not involved in selling any medicine and the feds had no jurisdiction. The goal is to get clarification on legal issues between state and federal law. The decision is expected near the end of this August.
Another US case was the Ed Rosenthal trial in US Court. Here Ed was sanctioned by the City of Oakland as a care giver. He was authorized to grow medicine. The feds busted Ed and he was charged as if he was a drug dealer. At his trial he was never allowed to disclose his care giver status. The jury convicted Ed. When jurors discovered he was legal under California state law, they had a fit. They felt that the trial was rigged by the federal judge, and a silent fraud perpetrated on them. The jurors went public. When it came to Ed's sentencing (a possible 40 years) the judge gave him only ONE day in jail with credit for time served. Now the AUSA is appealing Ed's one day sentence as they want him to do more time. The tug of war goes on. One bright scholar mentioned that sentences like Ed's indicate an end to marijuana prohibition. This was how liquor prohibition ended. Laws and penalties were for the most part ignored, resulting in changing laws.
Another US case is Conant v. Walters, decided by the US 9th Circuit Court last October. Here the DEA tried to revoke California physicians' licenses to prescribe medicine IF they recommended pot for medicine. There is a difference between making a recommendation and writing a prescription . For explanation, prescriptions for marijuana are never given as this would violate federal law, so no doctor can write a prescription for marijuana use. The court held the discussion and recommendation of herbal marijuana was protected speech under the First Amendment. The DEA was enjoined (stopped) from singling out these docotors and threatening to revoke their licenses to prescribe medicine. Thus the feds could not use this excuse to interfere with physicians and to pull their licenses. The court preserved our state law and patients' rights to use marijuana. The Bush Administration is now appealing the Conant decision. This is US Supreme Court case # 03-40. We believe that this case can go either way and predict that, absent a decision based on politics, it will be upheld. If the case is overturned, it will gut California's medical marijuana law. There will be no doctors making recommendations in California and our state law will fail. This appeal shows us that the feds continue to interfere with our state laws and patient rights.
California Law and Prosecution of Patients - Local Policy is Not Law
The leading case on the California law is People v. Mower, decided by the California Supreme Court in July, 2002. Mr. Mower, a qualified patient, was accused of growing 30 plants. This was in a county where the sheriff adopted a guideline and policy that over 3 plants was illegal. He arrested Mower, a seriously ill diabetic. It is important to note that a sheriff enforces laws and never makes any laws. In fact the court stated that Mower was never charged under the sheriff's internal policy, nor was the policy used in the trial. In other words, the court recognized that no policy is law, but left unanswered the issue of legal number of plants. The quantity of plants and weight of medicine is not answered in H&S 11362.5, and it has not been answered by the court or executive branch. Quantity is ultimately a medical question, left between the physician and patient. Thus a patient relies on his physician's recommendation and legally obtains what is available for "self medication" in his/her area of the state.
Availability of Medicine Defense - New
We believe that another quantity defense is availability of the medicine. Under the H&S section part (C) the state is encouraged to set up a safe distribution. California has shirked this directive and has failed to set up any distribution plan. One must purchase the medicine illegally, or drive perhaps 200 miles to a co-op. Seriously ill patients can't do this every week or month. The issue of a large quantity may be addressed by this lack of a safe access. A patient may be forced to purchase a few pounds at one time to have an adequate supply of this medication. Once this is understood by cops and prosecutors, patient (state) rights will have arrived. Until then, cops and prosecutors use the old criminal policies for arrest and prosecution of patients. Watch out!
The federal GAO study of the 58 counties in California shows policies for legal number of plants range from 2-99 plants. So arrest and prosecution in California varies widely. This patchwork is due to the failure of any statewide agency to announce a state standard and provide distribution. While state law preempts every individual county policy, it is silent on the issue of quantity. Every Rx patient defense lawyer should fight these local policies under the theory of state preemption, availability, and use of the California Attorney General policy statement to law enforcement and prosecutors. Policy is never law.
California State Law Preemption Defense - Over Local Policy
Another example of this unequal application of law is traveling with medicine. One will travel through legal and illegal jurisdictions, based on local policies about allowable quantities. This too is unconstitutional and should be attacked. Lack of notice about some local policy is lack of due process. So the quantity issue is presently a void used by cops and prosecutors to harass patients. We have unequal application of this law due to local policies throughout the State of California. The main policy is that the medical right is ignored completely.
How to Raise Patient Immunity - Burden of Proof in Medical Cases
In Mower, the court held that the burden of proof is to merely raise a reasonable doubt as to the charging facts in the criminal complaint. It specifically stated that the Form Jury Instructions were wrong as instructions required the defendant to prove his/her status by a preponderance of the evidence. This is not the burden of proof. One merely raises the medical status by showing the physician recommendation. Then the burden of proof shifts to the prosecutor. This proof can be raised in a demurrer by attaching the recommendation to the patient's supporting declaration. The case (except for other circumstances) should be over at this point.
How to Dismiss a Criminal Case Prior to Arraignment - by Demurrer
Our court in Mower stated that patients are immune from the criminal laws. A patient must properly raise his or her status to assert this immunity. In fact they held that prosecution is prohibited. Where prosecution is prohibited, there is no jurisdiction to prosecute a patient. One of our advising lawyers, William McPike, raised the no jurisdiction to prosecute issue by use of a demurrer. This was under the penal code. This is believed to be the first California case using a demurrer to challenge a felony under Mower. (See felony issues below.) After filing the demurrer, the Madera Superior Court dismissed the patient's felony case prior to arraignment. Upon motion, the court ordered that the ONE pound of medicine was to be returned to the patient. This saved his client thousands of dollars and time. If the matter had gone further the patient would have required the testimony of his physician, costing a few thousand dollars. Dumping these cases early is the idea. Attorneys Familiar with the Demurrer Procedure - Get a Dismissal.
Marijuana Patient Rights
Remember as a qualified marijuana patient you have state rights. The Mower decision at page 4 stated that the federal law was irrelevant as state prosecutions are under state laws, as is the patient's immunity. You do have rights and they should be asserted via a demurrer. If you are going to trial something went wrong.
Patients Charged with a Felony
Arrests are made under California Health & Safety Code Sections 11357-59. Mower mentions only '57-'58. 11359 is a felony, while the other sections are misdemeanors. Some lawyers believe that felony charges cannot be dismissed by raising the medical status. However it is clear that a policy to arrest and charge a felony is a discretion. Since there is no scientifically established abusive amount of this medicine the felony charge should always be challenged, as if the charge was a misdemeanor.
Cops Violate Court Orders to Return Marijuana Medicine
In California many courts have ordered the return of medicine to patients. However, this return is frustrated by the cops who claim they will violate the federal Controlled Substances Act. This is a poor excuse as the act specifically states that law enforcement have immunity from acting under state statutes in enforcing the law. In California we have the state statute allowing patients to obtain marijuana. Thus the cops have immunity under federal law by enforcing the California state medical law. Both the cops and patients have immunity. Don't let the cops excuse violation of the court order to return your medicine. Also the cops are second guessing the judge. If the cops claim they will violate federal law, then they are saying that the judge ordered them to violate federal law. Rick Runcie (co-counsel for Mower) pointed out California Constitution Art. 3, Sect. 3.5. This states that civil servants acting under California law may not assert that federal law prevents them from enforcing California law. A case on point was mentioned by Oregon attorney Lee Berger. This is State v. KAMA. Here the City of Portland relied on the CSA and refused to return the marijuana medicine. The Oregon Appellate Court refused this argument, and explained the immunity under fed law. On further appeal to the Oregon Supreme Court, that court denied any review of these settled issues. Another method used by the cops is to try to get the DEA to seize the medicine. For the correct process, the feds must set up a case and have the US Judge order the seizure. This is due process. This, in the opinion of Arcata, California attorney Bryce Kenny, violates "concurrent en rem" jurisdiction. This legal concept means that the two different jurisdictions (state and federal) may not claim jurisdiction over the same subject matter at the same time. Mr. Kenny has had a federal case pending for a year waiting for the US Judge to rule on this issue.
[Ed Note: Attorney William McPike is the person standing to the left of this story's image with his client and a signed judicial order -- directing the Chowchilla Police Department to return McPike's clients medical marijuana. They are standing in front of the main entrance to the Chowchilla P.D. building.]
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Pipeline (page 3)
Bush Escalates Marijuana War Supreme Court Asked to Sanction Doctors Who Recommend Pot
By: Bob Egelko (S.F. Chronicle)
The Bush administration, pressing its campaign against state medical marijuana laws, has asked the U.S. Supreme Court to let federal authorities punish California doctors who recommend pot to their patients.
The administration would revoke the federal prescription licenses of doctors who tell their patients marijuana would help them, a prerequisite for obtaining the drug under the state's voter-approved medical marijuana law.
Justice Department lawyers this week asked the high court to take up the issue in its next term, which begins in October. The department is appealing a ruling by an appellate court in San Francisco that said the proposed penalties would violate the freedom of speech of both doctors and patients.
If the justices agree to review the case, it would be their first look at medical marijuana since May 2001, when the court upheld the federal government's authority to close down a pot dispensary in Oakland and others in the state.
The October decision by the U.S. Court of Appeals in San Francisco "effectively licensed physicians to treat patients with prohibited substances" and interfered with the government's authority "to enforce the law in an area vital to the public health and safety," Justice Department lawyers Mark Stern and Colette Matzzie wrote in court papers.
The appeal "is a sign that this administration will do everything they can to defeat the will of the voters of California and many other states," said Graham Boyd, an American Civil Liberties Union lawyer for doctors, patients and AIDS support groups who sued the federal government in 1997 over the policy, which the Clinton administration originally introduced.
State laws would be moot
If the Supreme Court takes the case and ultimately rules in the government's favor, Boyd said, "it would make all of the states' marijuana laws a dead letter. . . . If a physician can't recommend marijuana, then no patient can qualify" to use it under state law.
The federal action was in response to California voters' 1996 approval of Proposition 215. The initiative, a trailblazer for laws in eight other states, allows seriously ill patients to use marijuana with their doctors' approval.
Prop. 215 specified that the approval would take the form of a recommendation rather than a formal prescription.
The federal government classifies marijuana in the same prohibited category as heroin. Contending that the drug has no medical value, the Clinton administration announced in January 1997 that doctors who recommended marijuana would lose their licenses to prescribe federally regulated narcotics. Doctors in many fields need federal licenses to remain in practice.
The Clinton administration dropped the issue after a federal judge barred enforcement of the policy, but the Bush administration revived the plan and took it to the U.S. Court of Appeals in San Francisco, which ruled against the government in October.
Giving advice ruled legal
In the 3-0 appellate decision, Chief Judge Mary Schroeder said federal authorities can prosecute doctors for helping patients acquire illegal drugs, but not for simply giving medical advice that might let a patient obtain marijuana.
She said the federal policy clashed not only with free speech but also with the states' traditional authority over the practice of medicine. That issue is central to another case now pending before the appeals court, involving Attorney General John Ashcroft's attempt to punish doctors who prescribe lethal drugs for patients under Oregon's assisted-suicide law.
The Justice Department's Supreme Court appeal argues that a physician's "recommendation" under California law is the equivalent of a prescription for illegal drugs, an action the government can forbid without violating free speech.
Department lawyers said the federal policy would not penalize a doctor for merely discussing marijuana with a patient -- as long as the doctor makes it clear that the drug is illegal under federal law, that federal authorities consider it dangerous and medically useless, and that the doctor is not recommending it.
'War against patients'
News of the administration's appeal dismayed two patients who are plaintiffs in the lawsuit.
"I wish the government would stop this war against patients and doctors," said Keith Vines, 53, a San Francisco assistant district attorney who lost 50 pounds and nearly died from a wasting syndrome associated with AIDS. He credits medical marijuana with restoring his appetite and saving his life.
"Medical marijuana is keeping me with the ability to continue treatment," said Judith Cushner, 58, director of Laurel Hill Nursery School in San Francisco, who is undergoing chemotherapy after suffering a relapse of breast cancer. The government's bid for Supreme Court intervention, she said, is "absolutely frightening."
The case is Walters vs. Conant, No. 03-40.
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