State Court Ruling Shoots Down MMJ Restrictions
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State Court Ruling Shoots Down MMJ Restrictions
Posted by CN Staff on January 22, 2010 at 07:25:23 PT
By Thadeus Greenson, The Times-Standard
Source: Times-Standard 
CA -- A unanimous California Supreme Court on Thursday struck down a law that sought to impose limits on the amount of marijuana a medical patient can legally possess, essentially sending Humboldt County's prosecution guidelines, and countless others throughout the state, up in proverbial smoke. The California high court ruled that state lawmakers overstepped their bounds in 2003 when passing Senate Bill 420, which sought to give law enforcement guidelines on when to make marijuana possession arrests by mandating that each patient could have a maximum of eight ounces of dried marijuana.
The bill sought to add clarity to 1996's voter-approved Proposition 215, which made it legal for patients to possess and cultivate unspecified amounts of marijuana with a doctor's recommendation. The case, The People v. Patrick Kelly, adds considerably more gray to an already murky legal area governing medicinal use of the drug, and what constitutes legitimate personal medical consumption. One thing is for sure, according to University of California Hastings School of Law professor David Levine, the ruling will make it much more difficult to prosecute medical marijuana cases. "We end up going case by case, rather than having some sort of guidelines,” Levine said. “You're going to end up having to decide this case by case. Given this particular defendant, was this reasonable or not? And, it will be decided by a jury.” The ruling essentially states that only voters can change amendments, like Proposition 215, that they've added to the state's Constitution through the initiative process. ”The basic issue is just the hierarchy of law,” Levine said, adding that the court's ruling did not come as a surprise. “That's really the core of it.” The Supreme Court's decision upholds a lower court ruling that tossed out the conviction of Patrick Kelly, a Southern California man who was arrested for possession of 12 ounces of dried marijuana and seven plants. A “confidential informant” called Lakewood Police to report Kelly's possession in October 2005. Experts testified that the amount of marijuana Kelly had on hand would last him just a few weeks for treatment of hepatitis C, chronic back pain, and cirrhosis. Humboldt County District Attorney Paul Gallegos said he's already shared the court's ruling with the Humboldt County Board of Supervisors, county counsel and the sheriff, and intends on talking to other local law enforcement agencies about it. But, at first blush, Gallegos said he thinks the ruling renders the county's prosecution guidelines unlawful, as they place restrictions on the amount of space patients can use to cultivate marijuana, the amount patients can cultivate and the amount they can possess. ”We're back to no limits,” Gallegos said. “We don't even have threshold amounts we can throw in front of a jury.” Under Proposition 215, patients can use medical marijuana with a doctor's recommendation, but there's no requirement that doctors recommend a dosage. In fact because marijuana is still illegal federally, the California Medical Association advises physicians to avoid offering advice on how much marijuana a patient should use. Gallegos said it will likely be very difficult for his office to make determinations on whether the amount of marijuana possessed by someone with a doctor's recommendation is in line with what their doctor feels is necessary to treat their medical condition. ”You can arrest them all day long. The question is, can you prosecute them?” Gallegos asked, adding that, in many cases, his office likely won't know the answer until the patient's doctor is testifying at trial. That is a very expensive process by which to prosecute cases, Gallegos said, as it takes attorneys, a courtroom and jurors just to determine whether a case is prosecutable. Neal Sanders, a local attorney who handles medical marijuana cases, had a similar take. ”The prosecutor can't come in and say, 'this person violated the law because they had over eight ounces of marijuana,'” Sanders said. “The prosecution now has to prove the defendant had more than what their medical needs were. ... I think this is a boon to the defense for people that have medical marijuana.” Gallegos said the ruling adds to marijuana's nebulous, quasi-illegal state, which brings a host of complications -- both moral and criminal. ”When you say something is illegal, but make it so you can't enforce it, you've turned the law, instead of a rule, into a suggestion,” Gallegos said. “It really makes a lot of it unenforceable.” Allen St. Pierre, spokesman for the National Organization for the Reform of Marijuana Laws, said the court's ruling is a step in the right direction. ”It's very positive,” St. Pierre said. “It's an acknowledgment that the patient and the doctor relationship is sacrosanct and that the state, federal and local governments should not get between a physician and his or her patient.” But, the ban on SB 420 may be short-lived, according to Levine, as the court simply ruled the state can't impose the guidelines without first getting voter approval. ”What the Legislature will have to do is send it to the voters and see what happens,” Levine said. “There's no reason the Legislature could not put this on the next ballot.” The county guidelines, Levine said, are another ball of wax, unless the state acts first. ”At the county level, they just have to tear up those documents,” he said. Source: Times-Standard (Eureka, CA)Author: Thadeus Greenson, The Times-StandardPublished: January 22, 2010Copyright: 2010 MediaNews Group, Inc. Contact: editor times-standard.comWebsite: Medical Marijuana Archives 
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Comment #2 posted by Hope on January 22, 2010 at 08:23:38 PT
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Comment #1 posted by FoM on January 22, 2010 at 08:18:42 PT
SFC: Medical Pot Limits Struck Down by High Court
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