Pubdate: Sun, 21 May 2000
Source: Chico Enterprise-Record (CA)
Copyright: 2000 The Media News Group
Address: P.O. Box 9, Chico, CA 95927
Fax: (530) 342-3617
Author: Terry Vau Dell - Staff Writer
For those on both sides of the medical marijuana issue, it might as well be the late 1920s - the legal debate over pot as medicine resembles in some ways the waning days of prohibition.
Though it's been more than three years since voters in California passed Proposition 215 medical marijuana initiative, the lack of specific guidelines for its implementation has left both patients and the police uncertain how and when medical pot should be used and purchased.
Measures to resolve current conflicts have failed to make it out of committee in Sacramento, including one that would have set up a voluntary statewide registry of marijuana patients. That bill was withdrawn last year by its author, Democratic legislator John Vasconcellos, under pressure from Gov. Gray Davis.
Supporters of the measure hoped putting medical-marijuana under the control of state health officials would protect patients from arrest.
Vasconcellos has said he will try to hammer out a compromise bill this year that will win support from both law enforcement and the medical marijuana community.
Until then, both sides must look to the courts, resulting in an uneasy stalemate.
Much of the current legal debate is over "access" to marijuana for medical purpose.
Even with a doctor's recommendation, many persons too ill or unskilled to grow their own pot, risk arrest by resorting to buying it on the street, says local attorney Dale Rasmussen.
The Chico lawyer, who has represented several local medical marijuana defendants, sees several other problems with the current medicinal pot law.
As it is currently written, there is nothing to stop police from arresting people even with valid medical recommendations, seizing their pot, and refusing to return it, he notes.
Defense attorney Dane Cameron agrees that the rigid manner in which Proposition 215 is currently being implemented "stands the system on its head," by forcing people to prove in court they have the right to smoke pot with a doctor's recommendation.
"It used to be you're innocent until proven guilty," Cameron said.
Not so, says District Attorney Mike Ramsey.
"Prop. 215 doesn't make marijuana legal in California, it merely provides an affirmative defense" in court for people who have a doctor's recommendation. It's similar, Ramsey says, to "self-defense for murder."
While Ramsey believes that "the vast majority of the medical community" disagrees that pot has any medicinal benefit, "nonetheless it (Proposition 215) is the law in this state, and we are trying to uphold that law by distinguishing between those who want to use the law legitimately and those who are trying to use it as a cover for their illegal use," said the DA.
Complicating the issue, Ramsey notes, is the federal Controlled Substances Act, which the DA says makes it illegal to possess or cultivate marijuana for any purpose - even as medicine in California.
Medical marijuana advocates won a minor victory in December when a federal appeals court in San Francisco apparently ruled for the first time that owners of a cannabis buyers' club in Oakland could use a "medical necessity defense" when federal drug agents tried to shut them down.
Heartened by the ruling, a Shasta County man, Chris Ward, has opened a marijuana dispensary in downtown Red Bluff.
During one weekend "clinic," Berkeley psychiatrist Dr. Todd Mikuria reportedly approved marijuana for 50 new patients at the Red Bluff dispensary.
Bonnie Metcalf, who heads the Yuba County Compassionate Use Cooperative, has recently gone before county supervisors in Yuba and Butte counties seeking advice on how her group can help ill people obtain marijuana without interference from the law.
Metcalf, who is in a wheelchair because of arthritis in both hips, contends that until the law changes marijuana co-ops are a necessary conduit "between ill persons and their medicine."
But Ramsey says California courts have consistently held that cannabis clubs are illegal in any form.
He notes that Proposition 215 allows medical marijuana to be provided to a patient only by a "primary care giver," who is personally responsible for that person's housing and safety, a definition he argues doesn't fit cannabis clubs or co-ops.
Not surprisingly, efforts to establish medical-marijuana cooperatives in Butte County have met with stiff resistance.
In 1997 - one year after Proposition 215 took effect - Butte County sheriff's deputies arrested David Kasakove on marijuana possession charges shortly after he opened a highly-publicized marijuana co-op out of his Nord Avenue "Everything's Hemp" store in Chico.
Last summer, deputies uprooted more than 175 plants in various stages of growth and arrested three people in Cohasset and Paradise who claimed they were attempting to grow and furnish "marijuana clones" to those unable to grow pot themselves.
The trio, members of an organization calling itself the "Cohasset Cannabis Commune Project," are awaiting what could be the first trial in Butte County to test the limits of the state's existing medical marijuana law.
Rasmussen, who defended Kasakove and who also represents one of the pot-clone defendants, contends that both cases demonstrate the main failing of Proposition 215: While the law allows medical use of pot under a doctor's recommendation, it provides no means for them to obtain it lawfully.
"People are allowed to use marijuana under Proposition 215 but where do they originally get it? It's illegal to buy it and if they grow it, where do they get the seeds to grow their own?" asks Rasmussen.
He says the law should be broad enough to help very ill people cultivate marijuana.
"Many ill people don't have the garden space, skills or even the strength to cultivate ... or have care givers who are able or willing to do it for them," the Chico lawyer contends.
Rasmussen also says the law needs to be more specific regarding when police can seize marijuana and should allow for "a speedy hearing procedure to determine quickly whether there is medical marijuana involved, whether the medicine should be returned and whether there is a valid doctor's recommendation that would prevent criminal charges.
"It's not fair for a sick person to wait for a trial and then be found not guilty because a jury determined it was medical marijuana," the Chico lawyer maintains.
Since a doctor's recommendation, either written or oral, is technically "hearsay," he said, he has had to subpoena physicians into court to confirm the validity of marijuana recommendations.
"Clearly, that's not what Prop. 215 visualized; it puts a terrible burden on the patient and doctor," the defense lawyer stated. "This is just one of numerous ways that Prop. 215 is inadequately drafted."
Butte County Sheriff Scott Mackenzie, who admits that he didn't support Proposition 215, says his officers will continue to bust anyone caught generally with more than "five to 10" pot plants, depending on size and potential yield.
Over that amount is indicative of an illegal sale, not personal or medical use, says the local sheriff.
Ramsey said that in meetings with police he has encouraged officers to make a determination on the spot whether a person has a valid medical marijuana recommendation.
But if that cannot be done, the local DA has recommended that cops take the person's plants "when there is more than reasonable for personal use and then fight it out in court."
Ramsey who says he regards marijuana only as "an alternative medicine" whose medicinal benefits have not been adequately tested , charges that Proposition 215 was a "Trojan horse" whose overall objective was "the wholesale legalization of marijuana."
The local DA points to the 50 or more marijuana recommendations handed out in Red Bluff recently as indicative of how the law is being "misused."
"The proponents of Prop. 215 tried to sell the initiative to the voters by saying this was intended to assist those folks with serious medical problems," Ramsey said.
He said locally, people have been found holding medical marijuana recommendations for "something as simple as depression and backache."
In more than one case, the district attorney says police have encountered situations in which an individual's doctor has refused to prescribe marijuana, but another physician with no familiarity with the person's medical history has ordered pot "on the basis of a phone call."
Cameron argues that police should not substitute their judgment for a qualified doctor in determining whether to bust a medical-marijuana patient.
"The police have to grow up and realize that Prop. 215 is the law in this state," the defense attorney says bluntly.
Ramsey says the current conflicts come from "trying to legislate the use of an illegal substance."
"If we're going to deal with this rather vague and difficult law, I'd like to see some clarity to make clear that distinction between medical and non-medical use," the local district attorney said.
"We need some clear guidance to get law enforcement out of the middle
of this controversy," said the DA.