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.