Pubdate: Wed, 04 Nov 2009
Source: Oroville Mercury-Register (CA)
Copyright: 2009 Oroville Mercury Register
Contact:  http://www.orovillemr.com/
Details: http://www.mapinc.org/media/2277
Author: Terry Vau Dell
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

BAN OF MEDICAL MARIJUANA USE BY OFFENDER TO BE CHALLENGED

OROVILLE -- An attorney said he will challenge a Butte County judge's 
order Tuesday barring a drug offender with heart disease from 
continuing to use medical marijuana while he is on probation, absent 
approval by a cardiologist.

Arthur Lee Jenkins, 48, of Concow contends the court ban conflicts 
with the voter's approval in 1996 allowing medical marijuana with a 
doctor's recommendation, which Jenkins possesses.

But the prosecutor points out the Concow man was convicted with 
nearly a dozen others in a purported scam to use the medical 
marijuana law as a cover to sell the drug for profit.

"It doesn't matter whether it is pot or another prescription drug 
such as OxyContin or Vicodin, the court has the authority to prohibit 
its use as a condition of probation," said assistant district 
attorney Helen Harberts.

Jenkins had been arrested during a series of sweeps of medical 
marijuana gardens throughout Butte County in September 2008.

Sheriff's officers testified at a pretrial hearing in the "mega" pot 
cultivation case in June that they found the names of the same 
patients being posted, often without their consent, at several indoor 
and outdoor grow sites.

In agreeing to accept a "package" plea bargain resolving the case for 
all 11 defendants, Butte County Superior Court Judge Steven Howell 
notified them that if they were granted probation they would not be 
allowed to continue using medical marijuana.

According to court records, Jenkins was one of two who did not enter 
into that stipulation as a condition of his no contest plea to a 
felony charge of possession of marijuana for sale.

At his sentencing Tuesday, Jenkins' attorney Robert Radcliffe said 
the defendant and his wife had been burned out in the 2008 summer 
wildfires and had relocated to a home in Concow, where he was 
persuaded by the alleged ringleader in the case to tend a medical 
marijuana garden.

Radcliffe said when the site was raided, Jenkins told sheriff's 
officers he was growing the pot for his own medical use, and planned 
to sell any "excess" to co-ops, unaware that it was illegal to do so.

As were two co-defendants on Monday, Jenkins was sentenced Tuesday to 
120 days in jail and was also placed on three years probation, during 
which time he cannot use marijuana, even with a prescription.

In making that order, the judge noted Jenkins had obtained his 
current medical marijuana recommendation prior to suffering a heart attack.

Howell indicated he would only consider lifting the pot ban during 
Jenkins' probation period with supporting documentation from the 
defendant's cardiologist.

Outside of court, Jenkins' attorney said he intended to file a notice 
of intention to appeal the sentence.

"While it (the court order) may be well intentioned ... I think that 
it should be in compliance with the law, and as I read the law, he 
has a doctor's recommendation and he should be allowed to use it," 
said Jenkins' lawyer.

Replied Harberts: "The law allows the court to exercise its 
discretion and here, it's clear that Mr. Jenkins' original 
recommendation had not considered the fact that he has a serious 
cardiac problem."

Jenkins, who was accompanied to court Tuesday by his wife, told a 
reporter the judge may not have been aware of the fact "I don't smoke 
the marijuana, I eat it."

Jenkins said he will ask his cardiologist to write a note to the 
court consenting to his continued use of medical marijuana on 
probation with the judge's approval.
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