Pubdate: Thu, 10 Feb 2005
Source: New Times (CA)
Copyright: 2005 New Times
Contact:  http://www.newtimesslo.com/
Details: http://www.mapinc.org/media/1277
Author: Jeff Hornaday
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)

JUST WHAT THE DOCTOR ORDERED

If attorney Lou Koory has his way, medical marijuana growers and users in
San Luis Obispo County will be armed with the most viable defense against
criminal prosecution since the passage of Proposition 215 eight years ago.

Koory currently represents Robert Marshall, who has been charged with felony
cultivation for growing 70 cannabis plants in a closet of his Morro Bay
home. In the first procedure of its kind in this County, Koory is asking the
court to dismiss the case against Marshall on the grounds that he is the
lawfully designated caregiver for two local medical marijuana patients.

"It's a very unique procedure [in SLO County] to put on this kind of
hearing, a motion to dismiss," said Koory. And if the judge rules in his
favor, it would make this defense -- which is far more expedient than a
criminal trial -- available to anyone cultivating cannabis as a caregiver in
accordance with the Prop 215 guidelines. Such a procedure is already
standard in Humboldt County and parts of Northern California where the
passage of Prop 215 was more warmly embraced.

The medical marijuana initiative, which passed in 1996, was written "to
ensure that patients and their primary caregivers who obtain and use
marijuana for medical purposes upon the recommendation of a physician are
not subject to criminal prosecution." (California Health and Safety Code
11362.5)

On their first day in court, Friday, Feb. 4, Marshall's defense made a very
strong showing, with the testimonies from a patient, Collin Van Noy, and Dr.
Daniel Weaver, an expert witness. In what Koory described as "the crux of
the case," Weaver took the stand and applied two different methodologies to
estimate the amount of usable product Marshall's grow room could have
produced. Koory was very pleased with Weaver's testimony, which demonstrated
that the quantity of cannabis being grown was "not only a reasonable amount
for the patient's needs, but inadequate," Koory said.

The methodologies employed by Weaver were developed at the University of
Mississippi and are commonly used by the federal government in determining
yield and differentiating between personal and commercial gardens.

The first method looks at the total weight of the plants and says that 28
percent of that would be usable bud. In this case, the 30 almost mature
plants in evidence, including root balls and a sizable quantity of dirt,
measured out to 520 grams, about 1.2 pounds. Applying this calculation,
Marshall could have produced just over 5 ounces of finished product.

The second method considers the total square footage of the garden, yielding
between a half-ounce per square foot on the high end and 0.38 ounces per
foot on the low end. Accordingly, Marshall's 17.5-square-foot operation
would have produced about 6.7--8.75 ounces.

In addition to those 30 healthy female plants, the Morro Bay Police
Department also found 36 seedlings and 7 unhealthy males.

Van Noy is one of two patients who have designated Marshall as their
caregiver. The 18-year-old Morro Bay resident described his case of
stress-induced asthma and various remedies he's used to relieve that
condition. But he maintains that cannabis is more effective than any of the
medications prescribed by his local physician, Dr. Casden.

Van Noy has a written recommendation for marijuana from Dr. Assad in
Oakland, and stated under oath that he consumes about a half-ounce a week.
"When I smoke, it helps me breathe." Van Noy said.

Deputy District Attorney Linda Luong raised objections to Van Noy's
assessment of his own medical condition, but was overruled. She then
attempted to impair the witness's credibility by citing other incidents of
alleged criminal behavior. Koory, however, was able to dissuade the judge
from allowing this line of questioning.

If the judge's initial rulings and reactions, which are consistently in
Koory's favor, are any indication, the defense has good reason to feel
optimistic about the outcome of their case. The case is scheduled resume on
Feb. 18 and will include testimony from Dr. Assad and a second medical
patient.

Last year, Koory prevailed in the case of Donovan No Runner, who uses
marijuana under his doctor's recommendation to alleviate symptoms of bipolar
disorder. The city of SLO returned 8 grams of pot to No Runner after it was
confiscating by the SLOPD. But the use of a medical defense for a caregiver
would be the first of its kind and could set a new precedent in SLO.

"It's a first-case scenario," Koory said. "So we just hope the judge does
the right thing."

Staff Writer Jeff Hornaday recommends preventive medication.
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