Pubdate: Fri, 19 Jul 2002 Source: Sacramento Bee (CA) Copyright: 2002 The Sacramento Bee Contact: http://www.sacbee.com/ Details: http://www.mapinc.org/media/376 Authors: Denny Walsh, Claire Cooper -- Bee Staff Writers Bookmark: http://www.mapinc.org/find?115 (Cannabis - California) STATE HIGH COURT BACKS POT LAW The California Supreme Court decided Thursday that the state's medical marijuana law can be used as a defense against criminal charges but does not insulate people from prosecution. The ruling, which left substantial areas unclear, left law enforcement officials free to arrest patients or caregivers who they believe are growing more pot than required for specified medical needs. But the court's ruling said defendants are likewise free to invoke the Compassionate Use Act both before and during trial. The 1996 act decriminalizes possession and cultivation of marijuana for patients and their primary caregivers who use or dispense the drug on the written or oral recommendation or approval of a physician. It does not set out acceptable amounts. Thursday's ruling marks the first time California's highest court has addressed Proposition 215, the controversial initiative that runs counter to the federal government's zero-tolerance policy. The case overturns the 1997 felony conviction of blind diabetic Myron Mower of Twain Harte, in Tuolumne County, who was arrested after police spotted 31 marijuana plants growing in his front yard. Mower was using the marijuana after his doctor suggested it to treat nausea and weight loss. The decision comes as federal drug agents crack down on medical marijuana in states where it's legal for patients who have doctors' authorization to use marijuana for medicinal purposes. Gerald Uelmen, a Santa Clara University School of Law professor, said the decision will reduce prosecutions throughout the state. "It's a wonderful victory for patients," said Uelmen, who argued the case for Mower. The lengthy unanimous opinion acknowledges a footnote in a U.S. Supreme Court ruling last year that held that there is no "medical necessity" defense under the federal Controlled Substances Act, which bans the manufacture and distribution of various drugs, including marijuana. "The court's holding, which involves the interpretation of federal law, has no bearing on the questions before us, which involve state law alone," Thursday's opinion states. The California court ducked the issue of how much marijuana is appropriate for personal medical use, declining to establish a standard that would apply in all 58 counties. Locally imposed limits on the number of plants allowed range from three to 99. The unanimous opinion was written by Chief Justice Ronald M. George. Supreme Court Associate Justice Marvin R. Baxter recused himself due to a conflict. The court ordered a retrial for Mower, ruling that the Tuolumne County jury in his case had been given erroneous instructions by the trial judge on the burden of proof required for conviction. Superior Court Judge Eric L. Du Temple had told jury members that it was up to Mower to prove by a preponderance of the evidence that his 31 plants were within personal use guidelines. In its ruling, the Supreme Court said the California Evidence Code requires that a defendant in a case such as this merely has to "raise a reasonable doubt as to that fact." Attorney General Bill Lockyer said Thursday in a statement that the decision "changes the standard jury instruction that has been employed ... throughout California, (but) it is unclear what impact it will have on previous medical marijuana convictions." Uelmen said the court's opinion does two things. "It confirms a right to litigate the issue of medical necessity prior to trial," and, in cases that reach trial, "it reduces the burden of proof" on the defendant, he said. Uelmen said the court's decision also equates the possession of marijuana for genuine medical reasons to the possession of prescription drugs. That means "marijuana plants in the possession of a seriously ill person should be treated the same as a bottle of pills," Uelmen said. Lockyer, whose office prosecuted the case, applauded the decision. "As a supporter of Proposition 215, I believe that the court's decision strikes an appropriate balance in helping to ensure that truly needy patients whose doctors have recommended medical marijuana to alleviate pain and suffering related to serious illnesses will have access to this medicine under California law," he said in a written statement J. Tony Serra, a San Francisco criminal defense lawyer whose firm defends many marijuana prosecutions, predicted "fewer arrests and many more cases thrown out before trial." He said he expects other states to follow the lead of California, the first state to legalize the drug for medical purposes. Uelmen said he was disappointed that the court declined to address the issue of acceptable amounts of medicinal pot. "This is a state law that demands a statewide standard, but we will have to wait for another day," he said. Ideally, he said, Lockyer and Gov. Gray Davis would step up and establish the guidelines. "But," he added, "it probably won't happen." The Legislature passed a law-enforcement-backed bill, SB 187, to set statewide standards and procedures for Proposition 215. But the measure died when Davis warned against sending it to him. A Davis press aide said last month that the governor was still studying medical pot. Davis could not be reached for comment on the court's ruling Thursday evening. The court found Mower to be a legitimate marijuana patient as defined in the state law, but the projected size of his harvest was hotly disputed. Mower's expert witness testified the 31 plants probably would yield a year's supply of 4.35 pounds, well below the 6 pounds the federal government provides annually to patients in its Investigational New Drug program. The prosecution's expert testified the plants would yield between 31 and 62 pounds. Mower "unquestionably was a patient -- an 'extremely' ill patient who suffered from 'diabetes and all its complications,' " the opinion says. It says he grew and used marijuana at the direction of a physician. The only question is whether the crop went solely for his own medical purposes. "Had the jury properly been instructed that (the) defendant was required merely to raise a reasonable doubt about his purposes ... it might have found him not guilty," the opinion says. - --- MAP posted-by: Jay Bergstrom