DA ASKS JUDGE TO LOOK AGAIN AT ISSUE OF MARIJUANA POSSESSION

Appeals court willing to reconsider Ravin conclusion if new evidence
is compelling enough

The state is going after the 1975 Alaska Supreme Court decision that
says adults can possess up to 4 ounces of marijuana for personal use
in their own homes.

In an action supported by Gov. Frank Murkowski, the Anchorage district
attorney has asked a judge to re-examine the 1975 Ravin v. state
conclusion that marijuana in small amounts is essentially harmless to
adults and not dangerous enough to override Alaska's constitutional
right to privacy at home.

"The idea that marijuana is a harmless substance is contrary to all
the scientific studies that exist today," said John Novak, chief
assistant district attorney and one of the prosecutors who filed a
motion Tuesday in Anchorage Superior Court.

If the state gets its wish, Novak envisions a full-blown hearing about
the nature and effects of current marijuana use featuring experts on
both sides.

The state appeals courts have already said they would be willing to
reconsider Ravin if presented with compelling new evidence that small
amounts of marijuana are harmful.

Prosecutors may also be buoyed by the 138,072-105,590 vote in last
month's election against decriminalizing all amounts of marijuana.

The vehicle chosen by prosecutors to re-examine the subject is a 2000
case against convicted drug dealer Gerald Mahle, 64, who is currently
serving a 25-year sentence on an unrelated 2002 conviction, according
to assistant district attorney Keri Brady, who prosecuted both cases.

Mahle was convicted by a jury in the 2000 case on multiple counts
involving drugs and guns. Police obtained their initial search warrant
in that case based on smelling marijuana during a conversation at
Mahle's door after a neighbor complained about drug trafficking there.

During this period, police and prosecutors were operating under the
assumption that the Ravin decision was dead because Alaskans voted in
1990 to re-criminalize possession of any amount of marijuana.

However, between Mahle's arrest in 2000 and his scheduled sentencing
in 2004, the state Court of Appeals threw out a Fairbanks marijuana
conviction and a marijuana possession charge in Homer on the grounds
that Ravin was still the law and possession of less than 4 ounces at
home was legal.

Ravin affirmed a constitutional protection that could not be trumped
by a ballot initiative, the court said.

The decision in the Homer case, issued this summer, directly affected
Mahle, his attorney Gene Cyrus argued in court papers. In that case,
police obtained a search warrant for the home of Lee Crocker Jr. on
the grounds that they could smell marijuana. But the court said police
could not conclude, just from the smell, that Crocker probably had
more than the legal 4 ounces.

Without probable cause, the search warrant should not have been
issued, the appeals court agreed, and the charges were dismissed.

Pointing to this decision, Cyrus has asked Superior Court Judge Dan
Hensley to reconsider the search warrant issued against Mahle back in
2000 and declare it in violation of Ravin. This would mean dismissal
of Mahle's convictions in that case, Brady said.

The case offers the state a perfect opportunity to challenge the
science used to convince the 1975 Supreme Court that small amounts of
marijuana are not harmful, Novak said.

"We're asking the court to see if the factual underpinning of Ravin is
still valid. We've learned a lot since then."

The decision to challenge Ravin was discussed in the governor's
office, said spokeswoman Becky Hultberg. Murkowski has a long-standing
concern about the bad effects of marijuana "on our youth and our
society," which "gives the state an interest in regulating it in the
home," Hultberg said.

In their request for a hearing, Novak and Brady said marijuana today
is on average six times stronger than what was available in 1975.

In 2003, "36 percent of adult males and 27 percent of adult females
arrested in Anchorage tested positive for marijuana, rising to 68.8
percent and 42.9 percent respectively for ages 15-20," they say,
citing a University of Alaska study.

Cyrus, Mahle's attorney, did not return several calls Wednesday
requesting comment.