The gray world of medical marijuana law seems to have just gotten a bit grayer.
A California court of appeals ruled last month that the restrictions on the amount of marijuana a patient can possess and cultivate outlined in Senate Bill 420, passed in 2003, are unconstitutional, causing counties across the state to rethink their medical marijuana ordinances.
The Del Norte County Board of Supervisors voted this week to drop its ordinance that restricted medical marijuana cultivation to 99 plants grown in a 100-square-foot space, after spending weeks actually discussing tightening those restrictions. Humboldt County may soon follow suit.
"( The court decision ) adds another layer of ambiguity to an already ambiguous law," said Del Norte District Attorney Mike Riese. "It was an enforcement headache to begin with -- it may have graduated to an enforcement migraine at this point."
In the appellate ruling in the case of the People vs. Patrick Kelly, the court ruled SB 420 to be unconstitutional because it amended a voter-passed initiative, Proposition 215, that didn't explicitly say it could be amended by the Legislature. According to the court's ruling, Proposition 215 can only be amended by a ballot measure.
Because SB 420 filled in the blank slate of Proposition 215, outlining the maximum restrictions a county could impose on medical marijuana patients -- a maximum of six mature or 12 immature growing plants and up to eight ounces of dried, processed marijuana -- the court ruled it unconstitutional, saying it was in fact an amendment to Proposition 215.
This leaves California counties, like Del Norte and Humboldt, without any standards for determining what quantities fall within medical use. And, that is being interpreted in different ways.
In rolling back its guidelines, Del Norte County is essentially leaving the ball in law enforcement's court, according to County Counsel Dohn Henion.
Under the previous ordinance, Henion said the Del Norte County Sheriff didn't touch anyone with a 215 recommendation that was growing less than 99 plants, or in possession of less than one pound of dried marijuana. That's all changed.
Henion said it will now be the responsibility of the patient to show law enforcement that whatever quantity they have is solely for medical use and the responsibility of law enforcement to decided whether that quantity is legal.
"The obvious easy answer is if the medical marijuana is medically necessary, have your physician specify the dosage and the amount you can have in your possession," Henion said.
But doctors might not be willing to do that, said Eureka attorney Neal Sanders, who specializes in marijuana cases.
"There's really no way for a doctor to say you have to smoke X amount of marijuana to get the relief you need because the potency is so varied," he said.
Riese said in all the marijuana cases he's dealt with, he's yet to see a 215 card or recommendation that specifies an amount.
Sanders said Del Norte County's approach in wiping out standards and leaving the issue at the discretion of law enforcement is problematic because it essentially assumes the possession or cultivation to be illegal unless the patient can persuade them otherwise.
"The problem with that set up is that it puts sick people in jeopardy of being put in jail for using the medications their doctors have recommended, and it doesn't even give those people that need medical marijuana any type of guidance on what will be legal for them to use," Sanders said.
"Essentially, what we're trying to avoid is patients being harassed by law enforcement, and essentially what they are doing is writing a blank check to law enforcement to harass whomever they want," he said.
Riese said he's not happy with the county's decision either, calling it a "knee-jerk" reaction to an appellate decision that's not even in his district. Riese said some guidelines are simply needed.
"My guess is that advocates of medical marijuana would want acceptable standards, law enforcement would want acceptable standards and you will find no other section of the Health and Safety Code that doesn't have objective standards," Riese said. "It's for uniform enforcement."
Without an ordinance in place, Riese said he and law enforcement will have to address the issue on a strictly case-by-case basis.
Back in Humboldt County, District Attorney Paul Gallegos said his office feels the appellate decision makes it impossible to enforce the county's ordinance -- which allows patients to cultivate 99 plants or less and possess up to three pounds of processed marijuana.
"The way we interpret it, that part of the law and the ordinance is just void," Gallegos said, adding that, without blanket guidelines, his office would also be looking at the issue on a case-by-case basis. "It's going to be case by case, but what we're going to be looking at is the details: the nature of the cultivation, the wattage consumption and things like that."
But, Gallegos said none of that should indicate a legal free for all.
"We don't want people to just go crazy, because people need to understand that if they don't police themselves, they will necessitate policing," Gallegos said. "There are amounts that exceed reason and indicate to us that it is cultivation for profit."
There are also other ways for municipalities to address the issue, according to Henion. Through health and safety code ordinances, Henion said counties and cities could apply other limitations, like prohibiting indoor grows.
All in all, Sanders said the appellate ruling in the Kelly case has its positives and negatives for medical marijuana patients. The positives, he said, come in counties that adopted the strictest possible guidelines under SB 420, which are now void. The negatives, he said, come in counties like Humboldt, which he said already had lenient guidelines that will now become nebulous.
Back up in Del Norte, Riese said he doesn't see anything positive about the ruling, which he said he expects to see the Attorney General's Office petition for review.
"Going back to where it originally was, I don't think helps anyone," he said. "It makes it harder for law enforcement to enforce and makes it harder for the individual ( patient ) to use an affirmative defense. It's tough to judge a law that doesn't have uniform applications. We're right back where we started -- with an ambiguous law that is hard to enforce."
Newshawk: Richard Lake
Pubdate: Sun, 15 Jun 2008
Source: Times-Standard (Eureka, CA)
Copyright: 2008 MediaNews Group, Inc.
Author: Thadeus Greenson, The Times-Standard
Referenced: The Court of Appeals ruling http://drugsense.org/url/fMJoZL02
Bookmark: http://www.mapinc.org/topic/Proposition+215 ora
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)