Court Accepts Medical Pot Use

By Maura Dolan,
LA Times

A patient who grows or smokes marijuana for personal health reasons, with a doctor's OK, cannot be prosecuted in state court, California justices rule.

SAN FRANCISCO - Californians who use or grow marijuana for personal medical use are protected from prosecution in state court as long as they have doctors' approval, the California Supreme Court decided unanimously Thursday.

In its first review of the medical marijuana initiative, which was approved by voters in 1996, the court said a medical user who is arrested can get the charges dismissed without a trial if the patient has a note on a prescription pad or any other evidence of a doctor's approval.

The ruling overturns the felony conviction of a blind man with diabetes who was arrested after police spotted 31 marijuana plants growing in the frontyard of his home in Twain Harte in Tuolumne County. Under the state law, "the possession and cultivation of marijuana is no more criminal--so long as its conditions are satisfied--than the possession and acquisition of any prescription drug with a physician's prescription," Chief Justice Ronald M. George wrote for the court.

The decision widens the gap between the treatment of marijuana cases in California's state courts and in federal courts in the state.

Until Thursday, all major rulings on Proposition 215, the state's medical marijuana law, have been made by federal courts and based on federal law.

The U.S. Supreme Court, in a case on the California initiative, ruled that there is no medical exception for the use of marijuana under federal law. As a result, people can still be prosecuted in federal court, regardless of the state law.

But individual users and growers in California are generally prosecuted in state courts, which are required to follow Thursday's ruling.

Gerald Uelmen, a University of Santa Clara law professor who argued the case for defendant Myron Carlyle Mower, 40, said the decision would reduce prosecutions throughout the state.

Since 56% of voters approved Proposition 215, dozens of Californians have been arrested on marijuana charges despite claims of medical need, he said.

"It is a wonderful victory for patients," Uelmen said.

He said he hoped the ruling would discourage police from arresting those who grow marijuana and have doctors' notes recommending its use.

"I don't think police are interested in arresting people who are not going to be prosecuted," he said.

Ann Brick, a lawyer with the American Civil Liberties Union, which also argued for Mower, praised the court for being "quite protective of the rights of medical marijuana patients."

"The court is making very clear that it understands the people of California wanted to confer real protection to the medical users of marijuana, and this decision helps make that possible," Brick said.

The state attorney general's office, which represented Tuolumne County prosecutors in the appeal, said it was reviewing the decision.

California is one of nine states with medical marijuana laws. The decision was the first by a state high court on such a law, Uelmen said.

After Mower's conviction, a state appeals court said the voter initiative had merely given defendants the right to present a medical defense during a trial.

That ruling, by a Court of Appeal in Fresno, also said that users or growers must show, by a preponderance of the evidence, that they had the marijuana solely for medical purposes.

Under Thursday's ruling, by contrast, a grower or user can ask a judge to dismiss the charges without trial.

If the amount of marijuana involved is considered large or the doctor's approval questionable, the defendant might still face a trial to determine whether the marijuana was purely for the defendant's medical use.

But the ruling also made it easier for such defendants to win if a case goes to court. Under the court's ruling, the defendant does not have to prove that the marijuana is solely for medical use. If there is any reasonable doubt about the marijuana's use, the defendant wins. "Most similar is the defense of possession of a dangerous or restricted drug with a physician's prescription, against a charge of unlawful possession of such a drug," George wrote.

"For that defense, a defendant need raise only a reasonable doubt as to his or her possession of the drug in question with a physician's prescription."

The court cited a provision in the initiative that says criminal penalties "shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician."

"The provision," the court said in People v. Mower, S094490, "renders possession and cultivation of marijuana noncriminal" when it is done for medical purposes.

Mower, who has had diabetes since he was 8 years old, testified that the 31 plants would supply him with 5 pounds of marijuana in a year and estimated his consumption at eight grams a day.

An expert witness for the defense testified that the plants would yield 4.35 pounds a year, but an expert for the prosecution countered that the plants would produce 31 to 62 pounds.

"Had the jury properly been instructed that defendant was required merely to raise a reasonable doubt about his purposes ... it might have found him not guilty," George wrote for the court. "We come to this conclusion because the jury might have found that defendant raised a reasonable doubt--to wit, whether the 31 plants would yield a harvest of only about 5 pounds for a year's supply."

Mower, who said he cannot maintain his weight without using marijuana, had been sentenced to five years' probation for growing the plants.

"I have a doctor who completely agrees with me that I need to have this," Mower said. "I have nausea all the time and wasting syndrome. And if I smoke a little, I am in the kitchen looking for something to eat and drink."

He said marijuana also puts him in a good mood and gives him stamina.

The issue in Mower's case was the number of plants he was growing. A Tuolumne County police policy says medical users may have three plants.

"They pulled out all but three of the worst plants and two weeks later took us to jail, booked me and kept my wife overnight," Mower said.

He said he now hopes to return to court and ask a judge to permit him to grow more than three plants, which are "not anywhere near enough." He said he needs to smoke about six or seven marijuana cigarettes a day and has been forced to buy from an illicit dealer.

"Those drug houses are dangerous places to be," he said.

Counties around the state have different policies about how many plants a medical user may grow. The permitted amounts range from three plants to 99. The ruling did not address the variance in policies.

"That's a bit of a disappointment," said Uelmen, Mower's lawyer, "because it is an issue of a grave statewide concern and a cause of a lot of confusion....We need a statewide standard, but that will have to wait for another day."

For users who are not advised to smoke marijuana for medical reasons, possession of less than an ounce in California is a misdemeanor punishable by a $100 fine. Cultivation is a felony.

Lael Rubin, special counsel to the Los Angeles County district attorney, said the district attorney's office does not prosecute growers unless they have at least 25 plants and there is evidence of a commercial purpose, such as scales and plastic bags. Other cases are treated as misdemeanors and referred to the city attorney, she said.