Court Overturns Medical Marijuana Senate Bill 420
Posted by CN Staff on June 04, 2008 at 17:53:36 PT
By Paul Boerger 
Source: Mount Shasta Herald 

medical California -- First an opinion from the State Legislative Counsel then a recent court decision both concurred that the plant and processed leaf limits in Senate Bill 420 unconstitutionally amended California's Proposition 215, which legalized marijuana for medical treatment.

The Second Appellate District Court on May 22 ruled that plant and leaf limits in SB 420 are unconstitutional because amending a proposition requires a vote of the people.

Although on opposite sides in the courtroom, Siskiyou County Public Defender Lael Kayfetz and District Attorney Kirk Andrus both hailed the decision.

“I think it's great, a very positive thing for people who need to access Proposition 215,” Andrus said. “SB 420 was a bad law. The decision gets back to the voter's intent.”

Kayfetz said the decision “verifies what any attorney with state constitution training knows. You can't amend voter initiatives through legislation.”

“I'm not surprised by the decision,” Kayfetz said. “Cases will probably have to be dismissed.”

But the State Attorney General's office disagrees.

“We're reviewing the decision,” said Attorney General Jerry Brown's spokesperson Gareth Lacy. “We think the court went too far and will likely appeal the decision.”

Proposition 215, the Compassionate Use Act (CUA), was passed in 1996. It provided for doctors to recommend marijuana for treatment of illness, allowing patients to possess and cultivate marijuana for “personal medicinal purposes.”

SB 420 was subsequently passed by the state legislature in 2003, setting limits of six mature plants, 12 immature plants and eight ounces of processed leaf.

SB 420 allowed cities and counties to set their own limits, and a wide array of standards were created, including Siskiyou County law enforcement adhering strictly to the SB 420 limits, while other counties allow dozens of plants and several pounds of processed leaf.

The federal government, however, recognizes no legal use for marijuana and classifies it a Schedule 1 drug, the most dangerous classification, along with heroin and crack cocaine.

Medical marijuana dispensaries in the state have been raided by federal agents and doctors who have written medical marijuana recommendations have been arrested.

In People vs Kelly, California's Second Appellate District Court said “the CUA does not place a numeric cap on how much marijuana a patient may possess or cultivate.”

“At defendant's trial for sale and cultivation of marijuana, the prosecutor argued that because defendant possessed 12 ounces of dried marijuana but lacked a recommendation to possess more than eight ounces, defendant was guilty of the charged offenses,” the court decision states. “The prosecutor's argument was improper. It was improper because the CUA can only be amended with voters' approval. Voters, however, did not approve the eight-ounce limit and other caps, hence, section 11362.77 unconstitutionally amends the CUA. It was prejudicial error therefore to allow the prosecutor to argue that defendant could be found guilty of the charged crimes if he had more than eight ounces of dried marijuana and did not have a doctor's recommendation to have more than that amount.”

An earlier opinion by the Legislative Counsel also found that SB 420 unconstitutionally amended Proposition 215. Citing several previous court decisions, the Counsel found that “those limits nevertheless constitute a statutory presumption, not contemplated by the Act, as to the specific amounts of medical marijuana that can be legally possessed.”

“Therefore, we further conclude that the marijuana possession limits set amend the CUA of 1996, and therefore, required the approval of voters in order to become effective,” said the Counsel opinion.

Although agreeing with the court decision, Andrus expressed concerns with regards to those using the medical marijuana law to grow cannabis for profit.

“Proposition 215 wanted to give people access to medical marijuana without being subject to abuse,” Andrus said. “That is a worthy goal. But under Proposition 215, with no rules, how does law enforcement determine whether it's for legitimate use or profit? People have made hundreds of thousands of dollars growing under the guise of medical marijuana. There needs to be rules under Proposition 215. Is SB 420 the appropriate means? Probably not; but without rules the system is subject to abuse.”

Andrus said his department will abide by the decision.

“We respect a doctor's recommendation for more than eight ounces and six plants as long as it is consistent with the needs of the patient,” Andrus said. “Our standards will come down to the doctor's recommendation, what the patient needs.”

Kayfetz, who has represented numerous defendants charged with violating the six plant, eight ounce limit, says that those convicted of or even charged with going over the limits are the victims of an injustice.

“Prosecutors have been applying statutory limits that are unconstitutional. The state Attorney General and county District Attorneys have been instructing line deputies to enforce a statute which is unconstitutional and has resulted in wrongful convictions,” Kayfetz said. “I've seen people drug through the courts who are within the plant limits. People have been incarcerated, had to make bail, pay for lawyers, the county has paid for lawyers and then the case is dropped.”

Kayfetz noted that an arrest stays on the person's record even if charges are dropped and they are out the money for bail and representation.

“It's a scarlet letter that lasts for life,” she said.

Redding doctor Philip Denny, who recommends medical marijuana, also hailed the court decision.

“The limits of SB 420 are unconstitutional. The legislature recognized this when they passed it said they were voluntary. They are guidelines, not law,” Denny said. “There are no requirements to be a qualified patient. SB 420 made it clear it is the physician who makes the decision of how much cannabis is required for treatment.”

Denny says depending on the medical condition, ranging from chronic pain to terminal illness, the amount of cannabis needed varies from one half ounce per week to many ounces. He also said it is because marijuana is illegal that the medical marijuana recommendations are abused for profit.

“People have to grow how much they need and depending on whether they grow indoors or outdoors it may need to be more than six plants,” Denny said. “The war on drugs is a dismal failure. Cannabis is illegal because of the political situation. All it has done is fuel a vast business in marijuana.”

Source: Mount Shasta Herald (CA)
Author: Paul Boerger
Published: Wednesday, June 4, 2008
Copyright: 2008 GateHouse Media, Inc.

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