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Maptalk-Digest Tuesday, December 25 2001 Volume 01 : Number 337

CSAP Controversy - 4 of 4
    From: Beth <>
Oregon Judge rules patients can't have medical marijuana without mature pla
    From: "D. Paul Stanford" <>
doonesbury Medical MJ thread continues today
    From: bar n grill <>


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Subj: CSAP Controversy - 4 of 4
From: Beth <>
Date: Mon, 24 Dec 2001 11:08:38 -0600

This is the third of 4 postings on this topic for your perusal.  This isn't 
a postable source for the news, but there is information that may be of 
interest to some of us.

December 7, 2001 - The National Association of Scholars [Press Release] - 
Stephen H. Balch, President, National Association of Scholars

Article URL: http://www.nas.org/print/pressreleases/hqnas/releas_07dec01.htm

NAS Deplores Treatment Of Dr. Sommers

The National Association of Scholars today deplored the treatment received 
by Dr. Christina Hoff Sommers at a meeting sponsored by the Center for 
Substance Abuse Prevention of the Department of Health and Human Services 
on November 1st. The NAS calls upon U.S. Secretary of Health and Human 
Services Tommy Thompson to investigate the conduct of the Center's staff.

Dr. Sommers had been invited to participate in a discussion entitled "Boy 
Talk: A Dialogue about the Health and Well Being of Boys in America," which 
dealt with new federal initiatives aimed at reducing substance abuse among 
boys. A nationally recognized authority on education and gender and an 
American Enterprise Institute resident scholar, Dr. Sommers was interrupted 
and prevented NAS members and others were outspoken in their criticism of 
the behavior of HHS Substance Abuse and Mental Health Services 
Administration officials toward Dr. Sommers. The outcry led Charles G. 
Curie, the SAMHSA administrator, to issue an apology to Dr. Sommers. Curie 
refers to unspecified "corrective action" that is being taken in the case. 
Click HERE for the text of Curie's letter. from completing her remarks by 
Center officials when she attempted to explore the lessons to be learned 
about "Boy Talk" from a related Department program for girls, "Girl Power." 
Later in the meeting Dr. Sommers had obscenities hurled at her by a member 
of the audience, while the Center's presiding officials did and said nothing.

"Any participant invited to appear at a government sponsored meeting 
deserves to be treated with civility and personal respect," said Stephen H. 
Balch, president of the National Association of Scholars. "Moreover, when a 
national authority on the questions being discussed speaks to obviously 
relevant issues, she should not be cut off. Intelligent policy-making 
requires that diverse views be heard, not censored.

Finally, it's troubling that Dr. Sommers reports widespread hostility at 
the meeting not only to her, but to the very idea of rigorous scientific 
research and evaluation. This is certainly not the type of intellectual 
environment in which the public wants policy to be made. It is bad enough 
that many issues can no longer be reasonably discussed on a large number of 
our campuses.

That this intolerant culture may now be invading our departments of 
government should surely be a matter of great concern."

The National Association of Scholars is America's foremost higher education 
reform group.

Located in Princeton, it has forty-six state affiliates and more than four 
thousand professors, graduate students, college and university 
administrators and trustees as members.

------------------------------

Subj: Oregon Judge rules patients can't have medical marijuana without mature plant
From: "D. Paul Stanford" <>
Date: Mon, 24 Dec 2001 11:56:31 -0800

CRRH note:  I went in to give expert testimony on an Oregon medical 
patient's cultivation case last week and Judge Snouffer was assigned the 
case. He informed us that he would not allow the defendant to raise a 
"medical marijuana" necessity defense, as allowed by the Oregon Medical 
Marijuana Act, and gave us the following letter and said he was ruling on 
our case the same as he ruled in the following letter. Our defendant joined 
the appeal of his ruling, which is beginning the lengthy appellate process. 
Though there is a lot to complain about this ruling, I think the following 
is the worst. I cannot imagine how Judge Snouffer came to the conclusion 
that a medical patient cannot have  marijuana if they do not have a live 
mature plant, but that is his ruling. Here is Judge Snouffer's most 
objectionable conclusion:

"Although that amount {the amount of cannabis the defendant possessed} is 
less than one ounce (an ounce equals 28.349 grams), the statute only 
permits the possession of "one ounce of useable marijuana Per each mature 
plant."  (emphasis added)  Defendant possessed no mature plants.  So his 
possession of any amount of useable marijuana exceeded ORS 475.306.  Thus 
he is disqualified from presenting the defense."

Judge Snouffer also ruled that Dr. Leveque was not the "attending 
physician" because Judge Snouffer claimed the Dr. Leveque did not do a 
physical exam nor write a treatment plan. In the following letter, Snouffer 
claims the defendant's "primary care physician" is his attending physician 
and Snouffer would not accept Leveque's physician statement.

Here is the entire letter:

 From Judge William Snouffer
Circuit Court Judge
Multnomah County Courthouse
Portland, OR  97204

October 11, 2001

Ms. Erin Olson
Deputy District Attorney
Multnomah County Courthouse
Portland, OR  97204

Mr. Andrew Kohlmetz
Attorney at Law
140 S. W. Yamhill, Suite 200
Portland, OR  97204

Re: State v Bryan Miles. 0103-31747

Dear Counsel:

This case was before me on September 17 and October 6, 2001, to consider 
the state's Motion in Limine.  The state seeks to bar defendant's evidence 
of medical necessity under ORS 475.319, and also to bar evidence of the 
"choice of evils" defense.

On October 5, 2001, I granted the state's motion with respect to the 
medical necessity defense, finding that defendant's "attending physician" 
had not advised defendant that "the medical use of marijuana may mitigate 
the symptoms"  of defendant's medical condition.  ORS 475.319(1)(a).  To 
the contrary, defendant's attending physician had advised against such use 
of marijuana.

The use of the "choice of evils" defense is a bit more complicated.  Based 
on a further study of the statutes and case law, however, I conclude that 
the "choice of evils" defense is not available factually to defendant in 
this case, so I will also grant the state's motion barring  that defense in 
this case.

The choice of evils defense is codified in ORS 161.200.  It provides that 
conduct that otherwise would be criminal is justifiable and not criminal 
when the conduct "is necessary as an emergency measure to avoid an imminent 
public or private injury."(There are other qualifications on the defense 
that are not pertinent here.)

The choice of evils defense is not available in this case.  Defendant 
cannot establish that his possession and growing of marijuana was "an 
emergency measure" that he took in order "to avoid an imminent public or 
private injury."  His evidence was that he engaged in that conduct in 
order, purportedly, to treat a chronic and longstanding medical 
condition.  There was no evidence that his medical condition was about to 
take an acute turn for the worse.  Thus there was no "emergency" that 
necessitated defendant's conduct in order "to avoid an imminent...private 
injury."

Defendant argues nevertheless that the Oregon Medical Marijuana Act gives 
him the right to present the choice of evils defense.  ORS 475.319(3) provides:

"No person engaged in the medical use of marijuana who claims that 
marijuana provides medically necessary benefits and who is charged with a 
crime pertaining to such use or marijuana shall be precluded from 
presenting a defense of choice of evils, as set forth in ORS 161.200..."

Defendant asserts that this statutory language grants him the authority to 
present the defense despite what he says is a conflict with the language of 
ORS 161.200.  But there really is no conflict.  ORS 475.319(3) allows the 
choice of evils defense "as set forth in ORS 161.200."  There may well be 
sets of facts or circumstances or types of cases in which the defense could 
be used "as set forth in ORS 161.200."  However this defendant's particular 
set of factual circumstances is not one of those sets of cases, as 
discussed in the preceding paragraph.

There is another reason why this defendant does not qualify under ORS 
475.319(3) to present the choice of evils defense.  The statute allows the 
defense only to a person "engaged in the medical use of 
marijuana..."  There are limits upon the "medical use" of marijuana.  ORS 
475.319(3) allows the defense "provided that the amount of marijuana at 
issue is no greater than permitted under ORS 475.306..." That latter 
statute limits the amount of marijuana present at the location involved to 
"three mature marijuana plants, four immature marijuana plants and one 
ounce of useable marijuana per each mature plant."  Defendant cannot meet 
those threshold limits.  The amount he possessed exceeded those 
limits.  According to the testimony, and Exhibits 6 and 8, defendant 
possessed three small, indeed tiny, plants and 15.4 grams of "vegetable 
material" that tested positive for marijuana.  Although that amount is less 
than one ounce (an ounce equals 28.349 grams), the statute only permits the 
possession of "one ounce of useable marijuana Per each mature 
plant."  (emphasis added)  Defendant possessed no mature plants.  So his 
possession of any amount of useable marijuana exceeded ORS 475.306.  Thus 
he is disqualified from presenting the defense.

Because of these rulings it is not necessary to decide the state's 
preemption argument. But an advisory comment or two might be useful. If an 
appellate court were to disagree with my rulings and conclude that this 
defendant is entitled statutorily to raise the choice of evils defense then 
the trial court would be faced with the state's preemption argument.  The 
state asserts that federal law preempts and overrides the language of ORS 
475.319(3) which purports to grant a choice of evils defense.  For purposes 
of this case, I disagree.  Preemption occurs if there is a clear conflict 
between federal and state law. See, State v. Rodriguez, 317 Or 27, 35-36 
(1993).  That does not exist here.  21 U.S.C. sec. 903 says that there is 
"an intent on the part of Congress to occupy the field...(when) there is a 
positive conflict between (a) provision of this title and (a) state law so 
that the two cannot consistently stand together."  There is no federal 
statute that says that states may not allow a choice of evils defense. Thus 
there is no "positive conflict" and no preemption.

Ms. Olson should prepare an appropriate order granting both prongs of the 
state's motion.

Thank you both for presenting an interesting and well researched and 
written set of issues.

Please coordinate your calendars and arrange for a mutually agreeable time 
for further proceedings and a court trial on the merits at your earliest 
convenience.

Very truly yours,

WILLIAM C. SNOUFFER
Circuit Court Judge

WCS/pm

CRRH is working to regulate and tax the sale of cannabis to adults like 
alcohol, allow doctors to recommend cannabis through pharmacies and restore 
the unregulated production of industrial hemp.

*Campaign for the Restoration and Regulation of Hemp*
mail:     CRRH ; P.O. Box 86741 ; Portland, OR 97286 USA
email:   
phone:  (503) 235-4606
web:     http://www.crrh.org/

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Subj: doonesbury Medical MJ thread continues today
From: bar n grill <>
Date: Tue, 25 Dec 2001 12:21:48 -0800 (PST)

See: http://dailynews.yahoo.com/h/cx/uc/db

Note that if you open this email after Dec 25, you can still use the
link....just scroll down to the PREVIOUS DAYS calendar and you can
easily read the earlier segments.

Brief Summation to Date: Last week's thread had ZONKER preparing
holiday fruitcakes for family and friends, along with traditional
fruitcake humor(ie, how a bagful feels like a bagful of rocks,
etc)....he takes one to his cousin B.D. who is doing security detail at
Ground Zero for the National Guard(that was Saturday)

Monday's installment is where Zonk reveals the fact that he baked all
the fruitcakes with cannabis included, since a lot of the cakes were
for friends in SoCal who are cannabis club members.

If you keep the link above, you can follow the thread throughout this
week on the chance your local wrap does not carry DB.

cheers from Clearwater

Steve

Do You Yahoo!?
Send your FREE holiday greetings online!
http://greetings.yahoo.com

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End of Maptalk-Digest V01 #337
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