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Court Gives Weight To Weed Defense

Justices say O.C. man could argue a pound isn't over the medical limit


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Source: Orange County Register, The (CA)
Author: John McDonald, The Orange County Register 
Published: Thursday, September 2, 2004 
Copyright: 2004 The Orange County Register
Contact: [email protected]

Santa Ana -- A Huntington Beach man caught with a pound of pot in his van who said he eats marijuana for medical reasons was wrongly convicted of intent to sell the drug, an appeals court ruled Wednesday. 

The case is the first of its kind in California and sets a legal precedent, allowing those accused of transporting more than a few ounces of marijuana to mount a medical marijuana defense.

Huntington Beach police arrested Shawn Wright in September 2001. They found much of the marijuana wrapped in small plastic bags, and they found a scale but no rolling papers, pipe or matches. 

Wright's lawyer said his client had long suffered pain from injuries and needed to eat the marijuana to counter his loss of appetite. 

"He'd cook it into butter and use the butter to prepare food, like brownies and cake," Greg Schreiber, the lawyer, said. "To prepare it that way you have to remove the stems and seeds, and a lot of it is lost in preparation.'' 

Orange County Superior Court Judge James Stotler had refused to allow Wright's lawyer to argue a "Compassionate Use" defense under the state's Proposition 215 law, which allows the smoking of marijuana for medicinal purposes. 

The opinion marks the first time the issue of a person eating marijuana, as opposed to smoking it, has been addressed in a published court of appeals decision, said Deputy California Attorney General Marc Nolan, who supervises all medical marijuana cases in the state. 

Stotler's decision was based in large part on the amount of marijuana Wright had. The judge ruled the amount was consistent with intent to sell, and outside of the parameters of Prop. 215. 

The judge found the eating- marijuana argument implausible. He sentenced Wright, 41, who works for a fencing company, to a year in jail but freed the Huntington Beach man after a few months behind bars. 

It's not clear from the documents why Wright, who also smoked the marijuana, preferred to eat it. His doctor testified that it takes more marijuana to obtain the same effect when eating it rather than smoking it. 

Wright could not be reached for comment Wednesday. 

But the claim that more marijuana is needed when it is eaten rather than smoked swayed Fourth District Court of Appeal Justices William Bedsworth and Eileen Moore to find that the jury should have heard the argument. 

"Although he had over a pound of marijuana with him, he explained he needs relatively large quantities of the drug because he prefers to eat, rather than smoke it," the two justices concluded in their ruling reversing Wright's convictions. 

Justice David Sills said in his dissent that the Prop. 215 defense is allowed only in cases of simple possession and growing marijuana for personal use. 

One earlier California case established that marijuana cigarettes containing 5 ounces were too big to claim a medical defense. 

An appeal to the California Supreme Court is being considered. 

Nine states, including California, provide a legal defense for those claiming a medical need for marijuana. None of those states have had a major legal case revolving around the issue of needing more marijuana when eating it rather than smoking it, said Bruce Mirken, spokesman for Washington, D.C., based Marijuana Policy Project, which advocates marijuana law reforms around the country. 

Prosecutors disagreed with the appellate decision. 

"He wasn't going to smoke it and he wasn't going to eat it; he was going to sell it," Deputy Orange County District Attorney John Christl, the trial prosecutor, said Wednesday. 

Bedsworth and Moore did not endorse the defense but said it was for a jury to decide. 

"Worse defenses than this have been advanced, and much worse defenses have succeeded," they remarked in their decision. 

Related Articles & Web Sites:

Marijuana Policy Project

Medical Marijuana Information Links

Court of Appeal Throws Out Marijuana Conviction

CannabisNews Medical Marijuana Archives 





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