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Medical Pot Rulings Keep Laws Evolving

Changes Perplex Officials and Users


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Source: San Diego Union Tribune (CA)
Author: Jeff McDonald, Union Tribune Staff Writer
Published: June 28, 2004 
Copyright: 2004 Union-Tribune Publishing Co.
Contact: [email protected]

Every week or two, sometimes more often than that, Damon Mosler is contacted by a street cop or police official trying to wade through the increasingly confusing world of medical marijuana. Automatically, the San Diego County prosecutor runs through his checklist. 

How many plants are involved? Is there any evidence of sales? Does the suspect have a doctor's recommendation or otherwise appear to meet guidelines set by San Diego or the state? 

Mosler asks these questions to weigh whether a person is ill and eligible to grow and smoke marijuana, or whether that person is using California's Compassionate Use Act of 1996 to justify getting high or selling pot. 

Many police departments and elected leaders still refuse to recognize any medical use for marijuana, the prosecutor said. In those cases, Mosler finds himself having to explain the law to law enforcement officials. 

"For some in law enforcement, there's a reluctance to fully understand the law," said Mosler, the district attorney's narcotics chief who decides whether to charge people with growing pot or to let them go. "I have a couple agencies that don't fully understand: It's the law and they've got to follow it." 

If beat cops and police chiefs have trouble keeping up with the rapidly changing allowances under the law, then the 3,000 or more San Diego County patients who are thought to rely on marijuana to ease their pain may be even more befuddled. 

Over the past nine months, a series of federal court rulings have reshaped medical marijuana laws, which opponents say are simply a ruse to legalize a dangerous drug. More appellate decisions are expected. 

In some parts of the state, those with AIDS, cancer and other diseases can pick up legally a supply of marijuana as easily as they can a cold medicine. Elsewhere, drug agents still raid pot gardens and lock up growers who appear to be operating within state law. 

Such sporadic enforcement of the rules has prompted a group of activists to host legal seminars throughout the state outlining patients' rights to medical marijuana and recent changes in the laws. 

Tomorrow, Americans for Safe Access brings its roving discussions to San Diego, where a new police chief and recently adopted city standards on medical marijuana have helped patients figure out the rules. 

The seminar will be at 7:30 p.m. in the second floor meeting room at the Central Library, 820 E Street. It follows a private meeting between the Americans for Safe Access staff attorney and local defense lawyers, who will be given a primer on tactics and trends in medical marijuana cases. 

Although San Diego officials and county prosecutors are allowing for the legal medical use of marijuana, there is still plenty to talk about. 

Just this spring, a San Diego couple were arrested and their plants confiscated, even though they were trying to comply with the law. They never were charged and later worked out a deal allowing them to keep 48 plants. 

And months after then-Gov. Gray Davis signed legislation requiring counties to issue identification cards to certified patients, San Diego County health officials have done next to nothing to meet the state law. 

"This law is very confusing and patients are having to figure it out on their own," said Steph Sherer, executive director of the Berkeley-based activist group. "There's no clear message from law enforcement or city officials." 

'Constant Anxiety'

California voters approved the cultivation and use of marijuana for chronically ill patients in 1996. But the loosely worded initiative failed to spell out terms for its production or distribution, or to specify the number of plants patients could grow. 
That left police and sheriff's departments responsible for implementing the pesky details. 

With little direction from the state, and a federal policy that marijuana has no medicinal value and is illegal under any circumstance, most cities ignored the measure until pot clubs began cropping up and forced the issue. 

In May 2001, continuing pressure from a small core of medical marijuana activists finally got the city of San Diego to form a task force to recommend guidelines patients could follow under Proposition 215, the landmark ballot initiative that became the Compassionate Use Act. 

Two and a half years later, the City Council voted 6-3 to allow patients to grow as many as 24 plants and possess up to one pound of smokable marijuana. Those limits were doubled for designated caregivers, who cultivate the drug for people too sick to grow their own. 

About the same time, Davis signed a law that for the first time set statewide standards on the number of plants patients can cultivate. But those guidelines limit patients to six plants each, a stipulation that patients say prevents them from growing enough marijuana to sustain them through a full year. 

Paul, a 48-year-old from Escondido with a disability, who declined to provide his last name for fear of being targeted by police, said he simply can't comply with the state limit. 

"The fear hangs over my head all the time," said Paul, adding that he broke numerous bones in a 1992 accident. "You've got to grow enough to last all year, but as soon as you do that (the law says) you're growing too much." 

Paul hasn't been arrested for illegal cultivation. But he said police and federal drug agents regularly fly over his home, monitoring his pot garden and taking pictures. 

"It's intimidating," he said. "I live in constant anxiety." 

Earlier this year, a federal judge granted an injunction ordering the government to stop pursuing Valerie Corral of Santa Cruz County, who grows marijuana for herself and a coalition of terminally ill patients. 

Corral is the only person in the nation legally allowed by every level of government to cultivate marijuana. Her supporters hope her case will set the standard for other patients around the state and country. 

Waiting on Appeal

Steve McWilliams, a chronically ill Normal Heights man who spent years very publicly advocating his right to grow and smoke pot, also didn't escape the notice of law enforcement. 

McWilliams has been arrested four times in San Diego County in the past five years, the latest in October 2002 by federal drug agents. Facing up to 40 years in prison, McWilliams pleaded guilty to illegal cultivation in exchange for six months in jail a sentence both sides appealed immediately. He argued the appeal early this year and is awaiting a ruling. 

As he waits at home, McWilliams said local governments should stop avoiding the law and set to work following the will of California voters. 

"We don't believe that the patients and physicians need to fight over how to implement this 8-year-old law," he said. "It's up to the cities and the counties to make sure this law is followed. We're tired of fighting." 

San Diego physician Robert Sterner only recently began advertising his willingness to supply patients with recommendations to use medical marijuana. 

Prior to October, when the U.S. Supreme Court denied a government request to punish doctors who support marijuana use for medical purposes, Sterner feared the government would go after his medical license. 

"That really took a huge load off my shoulders," he said. 

A few days before the Supreme Court upheld doctors' right to discuss marijuana with their patients, Davis signed the bill that for the first time enacted statewide standards for growing medical marijuana. 

Although the state law capped the number of mature plants at six, cities and counties may adopt less stringent rules. The law also requires county health departments to issue identification cards to qualified patients. 

San Diego County health officials said they are awaiting details from Sacramento and money to pay for the ID cards. State officials said Gov. Arnold Schwarzenegger's proposed budget includes $973,000 to fund the program. 

Medical marijuana supporters say the government bureaucracy is dragging its feet at every turn, deliberately delaying implementation of the popular law. 

"It's the ultimate Catch-22," Sterner said. "Patients have an opportunity to avail themselves of the medication, but they're not allowed safe access. It's terribly frustrating." 

Americans For Safe Access

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