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Spring/Summer 2000 Issue

Herbicide Spray Alert
CHP Accountability and Roadside Searches
Medical Marijuana News
New Lead Deputy for Humboldt County DEU
Warrantless Searches
Asset Forfeiture
Greensweep Lawsuit Update
Newsbites and Updates

Medical Marijuana News
...by Marie Mills

I've recently made contact with the District Attorneys' Offices of Humboldt, Mendocino and Trinity Counties in an effort to bring our readers the latest information concerning the guidelines for enforcement of the Prop. 215 medical marijuana law. Information from Mendocino and Trinity Counties was the easiest to obtain because these counties have established written protocol for 215. Thus it was a simple matter of faxing the information to our office with the suggestion that I call should there be further questions. The people in these offices were helpful and cooperative in sharing this information.

It was more difficult to obtain information from Humboldt County, although District Attorney Terry Farmer was helpful once contact was made. There are no written 215 guidelines in Humboldt County. According to Farmer, when asked why Mendocino and Trinity have written guidelines and Humboldt does not, it is because there is much more agreement among the Sheriff's Office, the DA's Office, the Health Dept., the medical community and the patients. "They are on the same page in Mendocino County," says Farmer. This is not true in Humboldt, making it necessary for Farmer to establish the guidelines.

Farmer is setting verbal guidelines on a case by case basis. Farmer says he would like to see seriously ill patients receive all the marijuana they need, but he doesn't want to see someone who easily receives a recommendation for stress to be able to grow for sales. He made the point that the doctor making the recommendation be the person's regular physician. Farmer states the following guidelines for seriously ill patients who are in need of marijuana. They are allowed to grow ten plants, but not too large in size. He acknowledged the recent Humboldt court ruling which allowed a patient 80 plants. Farmer allows the possession of two pounds of processed marijuana. I commented that the federal government distributes between six and seven pounds of marijuana a year through the U.S. mail to eight remaining people who received prescriptions in the 1970s. Farmer said that Humboldt marijuana is much more potent, so less is needed. In Humboldt, a caregiver who grows for a patient must be responsible for other care duties, such as transportation and shopping.

Farmer said there is a Humboldt 215 Committee which lacks consensus and has been bogged down on the certification issue. At this time Supervisor John Woolley is circulating the proposed ordinance for comment before it is presented to the Board of Supervisors for approval.

Mendocino County has made little change in their guidelines from last year, although one change stands out: the doctor making the recommendation no longer needs to be a Mendocino County resident. Twelve immature or six flowering plants and two pounds of processed marijuana are allowed. A caregiver may grow for more than one patient, if the caregiver and patients are county residents and are registered with the Health Department. A caregiver may grow for a patient and have no other care responsibilities. Patient registration with the County Health Department is voluntary. Sheriff Tony Craver expressed concern because many people are not registering. When I mentioned that people fear the confiscation of their records by federal agents, Sheriff Craver expressed frustration that state officials have not provided statewide guidelines.

Trinity County had no written 215 guidelines last year. The policy was for sheriff's deputies to treat all marijuana as illegal, and patients would be allowed a medical defense in court. This year a written protocol has been established. The stated purpose of the protocol is to establish criteria for verification of medical marijuana cases and thereby not infringe on legitimate possession of marijuana for medical purposes as set forth by Health and Safety Code Section 11362.5.

Investigators will recognize individuals claiming a medical need for use of the marijuana, who have a verifiable oral or written recommendation from a primary care physician in good standing with the CA Medical Board, or any physician in good standing with the Medical Board to whom the primary care physician has referred the patient. The recommendation shall include the patient's name, illness, date of the recommendation, prescribed or recommended dosage, quantity and frequency of usage. Also, duration of the recommendation, which is subject to at least annual renewal.

Based upon verification of the oral or written recommendation and absent evidence of sales or possession for sale, the standardized criteria from the CA Department of Justice Advanced Training Center are used as general guidelines. The allowable amounts are two outdoor plants or six indoor plants (three in the flowering and three in the vegetative stage). The patient may possess 606 grams (1.33 lbs.) of processed marijuana.

The county you live in determines the amount of medicine you're allowed and the rights you have as a 215 patient, because the Attorney General's Office has indicated that it will defer to localities on Prop. 215 enforcement. Because of this cop-out by the state there is much confusion in the interpretation of 215 by the counties.

In Humboldt County, three medical gardens grown on private land within the Hoopa Indian Reservation were raided by the Hoopa/Humboldt cross-deputized sheriff's deputies late last summer. There was no knock and no warrant when deputies entered the homes of Mindy and Wayne Lovel, Michael Shutler, and Ruben Sanders, where their six- to ten-plant outdoor medical gardens were confiscated. Humboldt County dropped charges against all three 215 patients. Presently all three parties are without their much-needed medicine.

One of the most confusing cases is that of Shasta County medical marijuana defendant Rick Levine, who was acquitted by the jury on cultivation charges. Superior Court Judge Bradley Boeckman ordered the sheriff to return the marijuana. County Sheriff Jim Pope claimed that to return the marijuana would violate federal law, and he refused to obey. Pope then called the DEA, who confiscated Levine's medicine before it was returned. The Levines' attorney filed suit against Sheriff Pope for contempt of court. Superior Court Judge John Letton threw out the contempt charge, ruling that Judge Boeckman's order was not sufficiently specific in mandating a time and place for Sheriff Pope to return the marijuana. The Levines have filed another suit against Shasta County for $1 million in damages for wrongful arrest and mistreatment while in custody. They have spent $95,000 in legal fees to defend themselves.

Patients like the Levines are seeking justice in the courts. In Calaveras County, patient William Harrison was acquitted by a jury for cultivating 64 plants. Randy Faria, a caregiver, was acquitted of growing 144 medical plants for his wife who died of cancer. In Sonoma County, a judge dismissed charges against patient Robert Teeter for 50 plants and 1.25 pounds of marijuana and ordered his medicine returned. Trinity County dropped charges against Russell Amos for five pounds of processed marijuana.

Dale Gieringer of CA NORML reports cases that have not gone so well for patients. Sacramento Judge Kenneth Hake denied patient Robert Ames the right to present his physician's recommendation to a jury as evidence that he was growing legally. After an all-day hearing with Dr. Todd Mikuriya, Ames' physician, Judge Hake ruled that Ames' medical conditions, gastritis and anxiety, did not qualify as "serious" illnesses protected by 215, and Dr. Mikuriya's recommendation was invalidated. Ames then pled guilty for 32 indoor plants because he was not allowed a medical defense in court. He says that Sacramento police told him their policy is to arrest all patients and destroy their gardens regardless of having valid recommendations.

Other Prop. 215 cases currently in the courts include patient Lisa Schwartz, facing charges for 68 plants in Ventura County. In Sonoma County, Ken Hayes has been charged for cultivating 800 plants to supply 1200 patient members for the CHAMP club in San Francisco. Gary Barrett of San Bernardino County is charged with cultivating 57 plants. In Placer County, Michael and Georgia Baldwin are awaiting a second trial, having obtained a hung jury in their first trial. Steve and Michele Kuby are awaiting trial in their long-delayed case.

This same policy of deferring to localities by the state has allowed the CA Highway Patrol to engage a "zero tolerance" policy for 215 patients. As reported by Stan Templeton, Lieutenant Commander of the Garberville area CHP, officers treat all marijuana as illegal. They cite the patient and leave the decision to press charges to the District Attorney. This absurd policy resulted in Sandy Sandeford, a quadriplegic patient in possession of less then an ounce of marijuana, to be cited by the CHP and taken from Garberville to Eureka (65 miles) without his wheelchair and medications, for processing. The judge set a court date, Sandy was released, and shortly thereafter was admitted to a hospital with pneumonia.

Who suffers? The patient suffers most with there being little or no concern for the fragile health of many 215 patients, and the taxpayers suffer the cost of these ridiculous cases going through the courts.

It is clear that state guidelines must be established for the enforcement of the 215 law. Deferring to the counties is causing unequal enforcement of the law.

In Sacramento, SB 848, by Senator John Vasconcellos, is being held up in the Assembly. This bill would establish statewide 215 guidelines. Last year the bill was held up because of threats of a veto by Gov. Davis' office. According to Dale Gieringer, the Governor's office expressed concern that the bill conflicted with federal law against medical marijuana. Senator Vasconcellos reports that he is withholding SB 848 from further action pending negotiations with the Governor, whose support is considered to be crucial.

As reported in our last newsletter, the U.S. Ninth Circuit Court of Appeals turned down the government's request for a review of its decision which permits medical cannabis clubs to distribute marijuana to patients with medical necessity. Not one of the 22 active judges in the Ninth Circuit voted in favor of the government's petition.

This ruling affects other medical cannabis defendants in the Ninth Circuit, including B.E. Smith, who is serving a 27-month sentence for growing 87 plants for medical treatment of patients suffering from post traumatic stress disorder. Judge Garland Burrell denied B.E.'s request for release from jail pending his appeal.

Hawaii is the first state to pass a bill to remove state-level criminal penalties for seriously ill people who use marijuana with their doctors' approval. The new bill is endorsed by Governor Ben Cayetano. This new bill is the first medical marijuana bill to be enacted by a state legislature, rather than through a ballot initiative. In fact, the new Hawaii bill is the first in U.S. history where a legislature has enacted a law to allow patients to possess and grow marijuana.

The bill is similar to the medical marijuana initiatives passed in seven states and the District of Columbia. Although federal law criminalizes the use of marijuana, 99 percent of all marijuana arrests in the U.S. are made by state and local officials, says the Drug Reform Council.

Chuck Thomas, director of communications for the Washington, DC-based Marijuana Policy Project, said, "The first wave was the passage of state ballot initiatives, the second is state legislation, and the third will be federal legislation."

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