Source: Long Beach Press-Telegram (CA)
Contact:  http://www.ptconnect.com/
Pubdate: Sat, 15 August 1998
Author: Joe Segura, Staff Writer

PROP. 215 DISALLOWED IN CHAVEZ CASE

Medicinal pot: Activist to stand trial Aug. 24 on drug-sale charges.

SANTA ANA - A second judge has banned the use of Prop. 215, the medicinal
marijuana initiative, from being argued before a jury in the defense of
activist Marvin Chavez.

Judge Frank F. Fasel said Prop. 215, known as the Compassionate Use Act of
1996, is flawed, but said the state Legislature - and not the jury - should
make the measure workable.

Chavez, the co-founder of the Orange County Patient-Doctor-Nurse Support
Group, will stand trial Aug. 24 on 10 felony drug-sale charges stemming
from his activities with the cannabis club.

The Garden Grove man was arrested in April after allegedly selling
marijuana to an undercover officer posing as a care-giver for a terminally
ill uncle.

He says the support group is designed to be a clearinghouse for the
seriously ill who use marijuana medicinally.

The organization, established after the passage of Prop. 215, legalized the
medicinal use of marijuana in the state. There are about 200 members who
reportedly have presented a doctor's recommendation for marijuana use.

Last month, Orange County Superior Court Judge Robert R. Fitzgerald banned
the use of Prop. 215 from the pending trial, but he gave no reasons for his
decision.  The case was turned over to Fasel, because Fitzgerald was
scheduled for a three-week vacation.

Although Fasel signaled that he also opposed introducing Prop. 215 into the
Chavez case, he left the door open during Friday's hearing to allow the
attorneys to add verbal arguments to their written briefs.

Defense attorney Jon Alexander said Chavez had received doctors'
recommendations and prescriptions for marijuana for seriously ill patients
in the spirit of Prop. 215.  "Prop. 215 is the motivation for what he's
done," the attorney added.

However, Deputy District Attorney Carl Armbrust said the law limits the
distribution of marijuana to the patient's primary care-giver. Chavez does
not fall into that role in any of the cases he's facing, Armbrust said.

Alexander countered that the law allows for multiple care-givers, arguing
that Chavez should be considered a care-giver "in spirit" since he provided
marijuana only to those who are seriously ill.  He added that the jury
should be allowed to determine if that assertion is valid.

However, Fasel was not convinced.  He said Alexander and co-counsel Robert
Kennedy of Long Beach, needed to show more facts that Chavez is a care giver.

The judge said that, at best, Chavez only visits the ill, adding that the
definition of a care-giver includes the duties of providing housing, health
and safety services.

"Just handing over marijuana just doesn't make it," Fasel added.

Alexander countered that Chavez's activities kept people from having to
make their purchases from street dealers.

"There have been 601 instances when Chavez has provided the marijuana,"
said Alexander, adding that Chavez could not be considered a dealer.  "Your
regular dope dealer doesn't require a note from a doctor.  That's highly
distinguishable from a dealer."

Fasel wanted to know how he could determine that the Patient-Doctor-Nurse
Support Group is non-profit, prompting Alexander to respond: "There's no
proof that there were profits."

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Checked-by: Mike Gogulski