Pubdate: Sat, 13 Jan 2001
Source: Press Democrat, The (CA)
Copyright: 2001 The Press Democrat
Contact:  Letters Editor, P. O. Box 569, Santa Rosa CA 95402
Fax: (707) 521-5305
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Author: Clark Mason, The Press Democrat

CASE TESTS LIMITS OF MEDICAL MARIJUANA LAW

SR Man Challenging Charges He Was Growing More Pot Than Was Necessary For 
Treatment

For the first time in Sonoma County, a jury will try to resolve how many 
plants a medical marijuana user may grow.

A Santa Rosa man, twice arrested on suspicion of felony pot cultivation, is 
challenging charges that he was growing more pot than necessary for his 
medical needs.

Jury selection is set to start Tuesday in what lawyers say is not only a 
first in Sonoma County, but one of only a few medical marijuana cases in 
the state to go to trial.

California counties have differing guidelines for the number of plants 
patients can grow under a 1996 initiative allowing the medicinal use of 
marijuana. Some jurisdictions, such as Oakland, allow as many as 96 plants.

Most counties allow between four and 10 plants, although some counties -- 
including Sonoma -- have no specified number and decide on a case-by-case 
basis what is appropriate.

Alan MacFarlane, 47, of Santa Rosa and his lawyers say the 72 plants he was 
arrested for the first time and the 36 plants that deputies uprooted in a 
second raid were not an unreasonable amount for personal use, considering 
that some plants do not grow to maturity, or yield much.

"There's no guidance whatsoever," said MacFarlane's attorney, Sandy 
Feinland. "That's what makes it so hard for patients. The problem is there 
are no guidelines for how much to grow. You're at the mercy of whatever 
officer shows up at your door."

MacFarlane, a disabled Vietnam era veteran, is recovering from thyroid 
cancer and said he uses marijuana to alleviate chronic pain and nausea.

Sonoma County District Attorney Mike Mullins has been criticized for 
prosecuting some ill medical marijuana users, but he blames the initiative, 
saying it was poorly crafted and omitted specifics about the amount 
patients can use, where they should get it, and how they should obtain a 
physician's approval.

Prosecutor Carla Claeys said, "No doctor I know of knows what a person 
needs -- what the appropriate dosage amount is."

MacFarlane, who was first arrested in May 1999 and again in August of the 
same year, was offered a deal by prosecutors to settle the case if he would 
plead guilty to misdemeanor possession of more than an ounce of marijuana. 
But he has steadfastly refused.

He said Friday that if convicted, he would not be able to grow any 
marijuana for himself.

"I'm fighting for the ability to take care of my medical needs and be 
unmolested at home."

In addition to the marijuana charges, MacFarlane also faces a felony charge 
of possessing hallucinogenic mushrooms.

His attorneys say they were common mushrooms found in many back yards and 
MacFarlane didn't have any knowledge they contained anything illegal.

Although MacFarlane is risking a felony conviction and a potential prison 
sentence by going to trial, co-defense attorney Steve Spiegelman said 
medical marijuana users are hoping for the best.

"A lot of sick people in this county are counting on this case to relieve 
the situation, so other people don't go through what Alan went through," he 
said.

During pre-trial motions Friday afternoon, Feinland told Judge Robert Boyd 
that MacFarlane decided to grow marijuana plants in his west Santa Rosa 
home in 1998 and even wrote a letter to the Sheriff's Department alerting 
them that he had medical approval to do so.

MacFarlane claims a sheriff's detective called him back and told him it was 
all right to grow the plants, something the prosecution disputes.

After a neighbor reported the plants to law enforcement, sheriff's deputies 
uprooted all of them in May 1999 after obtaining a search warrant.

They came back and did the same thing in August after MacFarlane planted more.

Police say that in a conversation with MacFarlane's doctor he withdrew his 
approval of marijuana for MacFarlane, but the defense said the doctor 
disagrees.
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