POT RULING LIFTS LIMITS

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."