Pubdate: Mon, 30 Nov 2009
Source: San Diego Union Tribune (CA)
Copyright: 2009 Union-Tribune Publishing Co.
Contact:  http://www.signonsandiego.com/
Details: http://www.mapinc.org/media/386
Note: Seldom prints LTEs from outside it's circulation area.
Author: Greg Moran

RULING: POT ALLOWANCE SHOULD BE JURY'S CALL

Using State Possession Limits Called Improper

A state appeals court in San Diego has ruled that exactly how much 
marijuana a medical-marijuana user can legally possess is a question 
that jurors should decide, and using limits defined in state law is improper.

The unanimous ruling could mean a shift in how some medical-pot cases 
are handled at trial, legal experts said. It also anticipates a 
ruling expected soon from the state Supreme Court that deals with a 
similar issue.

Nathaniel Archer of San Diego was appealing his 2007 convictions for 
cultivating and possessing marijuana. Archer was a medical-marijuana 
patient who was arrested by San Diego police with 98 pot plants in 
his residence and an additional 1.72 pounds of dried marijuana.

He was convicted and sentenced to probation. The appeals court 
reversed his convictions for possession of the drug, concluding that 
it was wrong to use limits that the Legislature established in 2003 
on the amount of marijuana a patient could have. That law amended the 
Compassionate Use Act, the voter-approved initiative in 1996 that 
allowed the medical use of marijuana. Under the state constitution, 
the Legislature can't amend an initiative, unless doing so is 
specifically allowed in the initiative's language that voters approve.

The Supreme Court heard arguments on that same issue Nov. 3 in an 
unrelated case, and a ruling is expected soon. Most observers expect 
the court to strike down the numerical limits as unconstitutional.

In Archer's case, the Attorney General's Office conceded that the 
numerical limits were indeed unconstitutional, the opinion says. It 
argued his possession conviction should stand because telling jurors 
to use the numerical limits, as Superior Court Judge Kerry Wells did 
at Archer's trial, was not prejudicial.

Justice Patricia Benke, who wrote the opinion, disagreed. Benke said 
that with both sides conceding the numerical limits were 
unconstitutional, the only standard that could be applied was whether 
the amount of marijuana was "reasonably related" to a patient's medical needs.

Archer testified that he used about half a pound of marijuana per 
month. It would be up to a jury to decide how much of the 1.7 pounds 
he possessed - about a three-month supply, Benke calculated - was 
reasonably related to his medical needs.

Russell Babcock, Archer's lawyer, said the decision will have an 
impact on other cases.

"This has real ramifications," Babcock said. "It becomes a 
case-by-case basis for juries of reasonableness."

Some patients use large amounts of the drug, because they use it in 
baked products, lotions, oils or other applications.

Alex Kreit, a professor at the Thomas Jefferson School of Law and 
head of San Diego's Medical Marijuana Task Force, said that the 
decision is important because it means people will not be 
automatically subject to prosecution if they exceed the limits.

Kreit said he did not think it would open a new line of argument for 
people with large amounts of marijuana to avoid prosecution, or 
conviction by juries. He said defendants still would have to convince 
a jury that the amount of marijuana they had was appropriate.

"Folks would still have to make that argument, so I don't think there 
is a lot of downside to the ruling," Kreit said.

The appellate court upheld Archer's conviction for illegally 
cultivating the drug because he did not fit the definition of a 
"primary caregiver" under the law. The court also agreed that he was 
guilty of illegal cultivation because he was growing pot for at least 
two other people.

Archer testified that he was growing marijuana for four others in 
addition to himself, at least two of whom were also medical-marijuana 
users. He refused to identify the other two when he testified at the 
trial, the decision says. 
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