Pubdate: Thu, 06 Jun 2002
Source: Oakland Tribune, The (CA)
Copyright: 2002 MediaNews Group, Inc. and ANG Newspapers
Contact:  http://www.oaklandtribune.com/
Details: http://www.mapinc.org/media/314
Author: Josh Richman, Staff Writer
Bookmark: http://www.mapinc.org/props.htm (Ballot Initiatives)
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

STATE'S TOP COURT MULLS MEDICAL MARIJUANA LAW

Five and a half years after California passed its medical marijuana law, 
the state Supreme Court is about to consider what Proposition 215 really means.

The court will hear arguments today in Los Angeles in the Tuolumne County 
case of Myron Carlyle Mower, 40. The case began and will be argued far from 
the Bay Area, but its effects here could be profound.

"This is the first Proposition 215 case in front of the California Supreme 
Court, so it really gives them the opportunity to lay out a lot of the 
unanswered questions," said Santa Clara University School of Law professor 
Gerald Uelmen, who will argue Mower's case. Uelmen also has helped 
represent the Oakland Cannabis Buyers Cooperative in its legal battles.

The court will decide whether Proposition 215 of 1996 -- the Compassionate 
Use Act that aimed to legalize medical marijuana use -- confers immunity 
from prosecution, or whether someone must be arrested and brought to trial 
before using the medical marijuana law as a defense.

At issue is the law's language saying penal provisions dealing with 
possession and cultivation "shall not apply" to qualified patients using 
marijuana on a doctor's say-so, and saying such patients and doctors "are 
not subject to criminal prosecution or sanction."

The case also might allow the court to decide whether the medical marijuana 
law prevents counties or cities from setting their own limits on how much 
marijuana a patient can grow or possess -- a key issue around here, where 
Oakland's and Berkeley's limits on the number of plants permissible have 
raised great controversy.

"That one is going to be dicey -- I'm least confident about the court 
taking that issue on," Uelmen said of the plant limits.

Mower, a seriously ill and legally blind diabetic from Sonora who uses 
marijuana to control nausea and stimulate appetite, was still on probation 
from a 1993 marijuana-growing conviction when Proposition 215 became law 
and when officers found seven marijuana plants at his home early in 1997.

After that, Tuolumne County set a three-plant limit for personal medical 
use. In July 1997, officers returned to Mower's home and found 31 plants. 
He was tried and convicted of marijuana cultivation and possession.

In his appeal, he claimed he was entitled to complete immunity under 
California's medical marijuana law. He also claimed Tuolumne County's 
three-plant policy violated the state and U.S. Constitutions' ex post facto 
clauses, which forbid passing a law after an event that retrospectively 
changes the event's legal consequences.

The state Court of Appeal's Fifth District in December 2000 ruled Mower's 
reading of Proposition 215 "simply unworkable" because it would make police 
either ignore marijuana or do extensive investigations to clear people 
before arrest. The law provides an affirmative defense at trial, not 
complete immunity, the court found, declining to address the three-plant 
limit issue.

The state Supreme Court took the case in March 2001.

"The Supreme Court rarely grants a hearing to just affirm the Court of 
Appeal and say, 'You guys got it right,' so there is reason to be 
optimistic," Uelmen said Monday.
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MAP posted-by: Jackl