Pubdate: Mon, 19 Dec 2005
Source: Gilroy Dispatch, The (CA)
Copyright: 2005 The Gilroy Dispatch
Contact:  http://www.gilroydispatch.com/
Details: http://www.mapinc.org/media/3377
Author: Brett Rowland, Staff Writer
Cited: National Organization for the Reform of Marijuana Laws 
http://www.norml.org
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

CHP STANDOFF OVER MEDICAL MARIJUANA

Hollister - A legal battle erupted in the San Benito  County
Courthouse when the county's public defender  demanded a court hearing
to determine whether the local  California Highway Patrol commander
broke the law by  refusing to return a man's medical marijuana
confiscated during an arrest last year.

Public Defender Greg La Forge argued before Superior  Court Judge
Steven Sanders that Hollister-Gilroy CHP  Commander Otto Knorr should
return four grams of  medical marijuana, or face the possibility of
being  held in contempt of court because a judge had already  issued a
court order mandating the marijuana be  returned.

But Knorr said that while California recognizes  marijuana as a
medicine under certain instances, the  federal government does not.
That is why he cannot  return the substance CHP officers confiscated
from  28-year-old Eugene Popok, a Los Angeles-area resident,  during a
traffic stop for speeding on Highway 156 in  October of 2004, he said.

Popok was charged with driving under the influence of  marijuana at
the time, and La Forge said the criminal  charges against his client
have already been settled.  La Forge did not know what ailed Popok,
who was not  present during Thursday's hearing, however the primary
cause for medical marijuana is chronic pain.

The case was continued to Jan. 19, at which time La  Forge said he
will ask Sanders to hold Knorr in  contempt of court if the commander
fails to hand over  the marijuana. A misdemeanor contempt of court
charge  carries a sentence of up to six months in jail. Knorr  said he
did not know what he would do if Sanders  ordered him to return the
marijuana in January.

"I'll cross that bridge when I come to it," he said.  "I'm in quite a
quandary. I stand very strongly on my  ethics and have a
responsibility to the people of the  state of California, the
California Highway Patrol and  my officers to uphold the law. If I
lose my integrity,  I have nothing else to stand for."

La Forge called such reasoning "garbage" and pointed to  a federal law
that protects law enforcement officers  from criminal charges related
to enforcing state  controlled substance laws. Ethics, he said, should
not  factor into anyone's decision to follow a state law or  court
order.

"They are trying to get around the court order by  hiding behind a
penalty that doesn't exist," he said.  "The DA's argument that he is
being put between a rock  and a hard place is garbage."

The case playing out in San Benito's courtroom is a  familiar one to
Allen St. Pierre, executive director of  the National Organization for
the Reform of Marijuana  Laws. He said similar cases have also been
heard in  other states.

"It has happened before - usually the local police  literally walk
across the street and drop it on the  steps of the federal
courthouse," he said. "It's a very  contemporary question. The
citizens of California have  voted that (marijuana) is a medicine. It
would seem  malevolent, if not foolhardy, to not return what has  been
deemed legal."

La Forge believes Knorr's refusal to return the  marijuana is in
direct conflict with the CHP's policy  on medicinal marijuana.
Typically, the CHP takes a  hands-off approach and will not confiscate
the drugs if  the person qualifies under state law for possession of
medical marijuana, Knorr said. However, since Popok did  not notify
officers during his arrest that the  marijuana was for medical use, it
was confiscated.

"The defendant made no claim of medical use during the  arrest and was
driving under the influence at the  time," Knorr said Thursday outside
the courthouse. "Our  policy allows us not to seize medical marijuana,
but it  does not allow us to dispense it. That would be a  violation
of federal law."

The problem, Knorr said, is that state law, prompted by  the passage
of Proposition 215 in 1996 - which allows  people with certain medical
ailments to possess small  quantities of marijuana with a doctor's
recommendation  - directly conflicts with a federal law prohibiting
the  use or distribution of marijuana for any reason.

"We're caught in the middle of both," Knorr said.

But La Forge believes the law is clear, and said the  District
Attorney "throws the book" at many of his  other clients who violate
court orders.

"Why is this any different because a guy has a gun and  a badge," he
said. "It's clearly a double standard."

District Attorney John Sarsfield did not return phone  calls for
comment on the matter Thursday.

During the hearing, Sanders suggested the marijuana be  returned to La
Forge, on behalf of his client. But La  Forge would not accept,
explaining that only police  officers are exempt from prosecution for
enforcing the  state's drug laws.

Although the subject is a touchy one, La Forge believes  he'll be
successful and based his optimism on a 2002  case in which he was able
to get San Benito County  Sheriff Curtis Hill to return 11 grams of
medical  marijuana to another one of his clients.

Hill also was unavailable for comment. 
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MAP posted-by: Richard Lake