Pubdate: Sat, 01 Sep 2012
Source: Camp Verde Bugle, The (AZ)
Copyright: 2012 Western News&Info, Inc.
Contact: 
http://campverdebugleonline.com/Formlayout.asp?formcall=userform&form=1
Website: http://campverdebugleonline.com/
Details: http://www.mapinc.org/media/4914
Author: Howard Fischer

COURT COMMISSIONER WANTS DEPUTIES TO RETURN MEDICAL MARIJUANA

PHOENIX -- Sheriff's deputies will have to deliver three quarters of 
an ounce of marijuana to a California woman if a Yuma County court 
commissioner gets her way.

Lisa Bleich said it's not like she's ordering the deputies to become 
drug suppliers.

Instead, she pointed out, Valerie Okun had a valid medical marijuana 
card when the drugs were taken from her. The commissioner said all 
she is requiring is that the property be returned to its rightful owner.

Bleich acknowledged that marijuana remains illegal under federal law. 
But she rejected arguments that delivering the drugs to Okun would 
make the deputies guilty of illegal drug distribution under the 
federal Controlled Substances Act.

Now the case is before the state Court of Appeals. And what the 
judges rule about conflicts -- or lack thereof -- between state and 
federal law could set precedent for the entire state, long before 
Attorney General Tom Horne gets his own case to that point.

Court records show Okun was stopped in early 2011 at a Border Patrol 
checkpoint along Interstate 8.

Attorney Michael Donovan said officers searched her vehicle after a 
dog alerted on it, producing marijuana and hashish.

Rather than charge her under federal laws, the officers instead wrote 
up what amounts to a citation for violating Arizona drug laws, 
turning the matter over to county officials.

She has a medical marijuana card issued in California. And the 
Arizona law specifically provides for honoring valid cards from other states.

The result is that, five months later, the case was dismissed. Okun 
then filed for return of her property, with a judge ordering its release.

When Yuma County Sheriff Ralph Ogden refused, the judge ordered both 
sides to submit legal arguments to Bleich.

In what appears to be the first ruling in Arizona of its kind, Bleich 
specifically rejected arguments by prosecutors that federal laws 
making possession and distribution of marijuana a crime override the 
2010 voter-approved law.

"Congress did not intend to trample on the rights of the state to 
make their own laws pertaining to illegal drugs and medical marijuana 
use,' the commissioner wrote earlier this year. "It further implies 
that state laws pertaining to medical marijuana use can co-exist with 
federal law without conflict.'

Anyway, Bleich wrote, she said a police officer would be violating 
federal drug laws only "if he or she intended to act as a drug 
peddler rather than a law enforcement official.' And Bleich, citing a 
ruling from a California appellate court, said it "seems exceedingly 
unlikely' that federal prosecutors would ever arrest a police officer 
for simply complying with a court order to return a patient's medical 
marijuana.

But Yuma County Attorney Jon Smith told Capitol Media Services that's 
not an answer.

"It doesn't resolve the fact that people shouldn't be forced to do 
things that are otherwise illegal under our state and/or federal law,' he said.

Deputy Yuma County Attorney Edward Feheley makes a similar argument 
in in seeking relief from the Arizona Court of Appeals.

"The sheriff is prohibited from delivering marijuana to a person he 
knows has no right to possess marijuana -- even for medical 
purposes,' Feheley wrote, pointing out the federal law concludes 
there is no legitimate medical use for the drug.

Feheley also said that Bleich is required to obey both state and 
federal laws. In this is case, he argued, there is a "direct 
conflict' between the two, and that the U.S. Constitution requires 
the court commissioner to accept federal law.

Beyond that, Feheley argued that the Arizona Medical Marijuana Act 
has no specific provision requiring or authorizing a court to return 
confiscated marijuana.

By contrast, he said, the Oregon law spells out that if medical 
marijuana is seized it "shall not be harmed, neglected, injured or 
destroyed' by police. And the Oregon law requires that any drug be 
immediately returned once it is determined it was legally possessed.

Donovan countered that the voter-approved law spells out that medical 
marijuana legally possessed "is not subject to seizure or forfeiture.'

"Accordingly, as a matter of law, if was the property of defendant 
that these officers seized illegally,' he is arguing to the appellate 
court. "Returning the property to the rightful owner at this stage of 
the proceedings is precisely what is directed.'

Donovan warned the judges that if courts do not order the return of 
the marijuana, police could thwart the whole Arizona Medical 
Marijuana Act by simply taking the drugs from those who are otherwise 
entitled to possess them under the state law.

"The police cannot retain a person's property without running afoul 
of basic constitutional considerations,' he wrote. "Continued 
official retention of legal property with no further criminal action 
pending violates the owner's due process rights.'

Horne said he does not believe that Bleich's ruling conflicts with 
his legal bid to have marijuana dispensaries declared in illegal 
conflict with federal law.

"Federal preemption does not stop the states from themselves 
decriminalizing marijuana,' he said. By extension, he said, states 
are free to issue -- and honor -- identification cards that show the 
person is a medical marijuana user and entitled under Arizona law to 
possess the drug.

Horne said what the state cannot do is license anyone to sell the 
drug. And he disputed the contention that anything the sheriff was 
being ordered to do was the equivalent of selling marijuana

"It's pursuant to a court order,' Horne said.
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MAP posted-by: Jay Bergstrom