Pubdate: Tue, 08 Feb 2005
Source: Tribune, The (CA)
Copyright: 2005 The Tribune
Contact:  http://www.sanluisobispo.com/mld/sanluisobispotribune/
Details: http://www.mapinc.org/media/391
Author: Leslie Griffy
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)

MORRO CAREGIVER FIGHTS MARIJUANA CHARGE

Robert Marshall is first person in the county to dispute cultivation
charges with caregiver defense

When Morro Bay police investigated an unfounded report of a woman in
distress on Driftwood Avenue, they didn't expect to find 75 marijuana
plants.

The Sept. 1, 2004, discovery led the District Attorney's Office to
charge Robert Marshall with cultivation of marijuana, a felony.

Marshall and his attorney don't dispute he was growing the illegal
drug, but they argue police were wrong to arrest him.

Two medical marijuana patients designated Marshall as their primary
caregiver.

Under a provision of California's medical marijuana law -- approved by
voters in 1996 as Proposition 215 -- caregivers can grow marijuana
without breaking the law.

Marshall is the first person in San Luis Obispo County to fight felony
cultivation charges using his primary caregiver status as a defense,
his attorney Louis Koory said.

Koory has filed a motion in Superior Court to have the charges
dropped.

During court testimony Friday, prosecutor Linda Luong questioned
whether Marshall was a caregiver.

"Does (Marshall) drive you to your doctor's appointments?" she asked
Colin Van Noy, one of the two men who designated Marshall as the
primary caregiver.

Van Noy, of Morro Bay, who uses medical marijuana for his asthma and
nausea, said no.

But, he added, "Marijuana is part of my health."

Cases like Marshall's have cropped up around the state because some
provisions of Proposition 215 were not clarified and few laws to enact
it passed.

Proposition 215 provisions that allow "primary caregivers" to grow and
dispense pot -- as long as they make no profit from the work -- are
not applied consistently.

Counties, for example, are supposed to set up a registration system
for medical marijuana users and growers.

While Santa Barbara County's Public Health Department has done so, no
such system is in place in San Luis Obispo County.

The cities of Arroyo Grande, Atascadero, Grover Beach and San Luis
Obispo recently adopted temporary ordinances banning marijuana
distribution centers.

Those temporary bans were put in place to give local governments more
time to establish permanent regulations.

Oakland and Bakersfield allow medical marijuana co-ops to operate as
distribution centers under the "primary caregiver" provision of the
law.

Local officials also say they are waiting for a U.S. Supreme Court
ruling on whether the federal government can regulate marijuana that
doesn't cross state lines. That ruling is expected this summer.

Because the law isn't clear, police often aren't sure what to do when
they find a stash like Marshall's.

"If someone has the paperwork" designating them as a caregiver "we
usually take that into consideration," Morro Bay Police Cmdr. Tim
Olivas said.

All of the paperwork designating Marshall as a primary caregiver was
signed.

Still, because there is no standard document authorizing someone to
grow medical marijuana, having the paperwork won't necessarily keep
designated caregivers out of jail.

"The paperwork can be confusing," Olivas said, "and no one set of it
is official."

Testimony in Marshall's case is expected to resume in two weeks. 
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MAP posted-by: SHeath(DPFFLorida)