MEDICAL MARIJUANA CAUGHT IN LEGAL HAZE

Users in Chowchilla and Clovis Sue Authorities Over Handling Of
Cases.

Three Valley medical marijuana users say law enforcement and the
judicial system function backward for them, that they are guilty until
proven innocent.

A Chowchilla man and a Clovis couple, each eventually cleared of
marijuana charges, showed medical certification when they were
arrested. They still went to jail and had to prove their innocence in
court.

The medical marijuana patients want authorities held responsible for
keeping them from their medication. And they point to a state law that
says they should be left alone. But law enforcement officials say they
are bound by local and federal guidelines which require that they
pursue marijuana users.

It's a tug of war that both sides refuse to back down from.

"It's repugnant to the foundation of our entire system," said William
McPike of Auberry, who defended both recent Valley cases. "These
people are innocent, so how can you lose defending innocent people?"

Michael Celli, 42, of Chowchilla has a hearing May 21 to determine if
Madera County District Attorney Ernest LiCalsi and John Robinson,
former Chowchilla police chief, will face contempt of court sanctions
- - fines or jail - for not returning a pound of medical marijuana
seized as evidence last year.

Possession charges filed against Celli were dismissed by LiCalsi's
office 10 months ago. A Madera judge then ordered the return of
Celli's marijuana, but when Celli showed up last July at the
Chowchilla Police Department, Robinson refused to hand it over.

Following a phone conversation with LiCalsi, Robinson told Celli that
federal law prevented the drug's return and that federal Drug
Enforcement Administration officials may take charge of the marijuana,
McPike said.

In court papers, McPike calls Robinson and LiCalsi's decision "a
warped scheme to challenge this court's jurisdiction." The marijuana
still sits in a Chowchilla police evidence locker.

Chowchilla police can keep the marijuana now, McPike said, because it
has been sitting so long that it has questionable medicinal value.
But, he said, Celli should be paid $4,800 for the marijuana and $5 per
day for the loss of its use since July.

McPike also asks "appropriate criminal penalties and sanctions" and
$4,050 in lawyer's fees.

In his response papers, LiCalsi denies "each and every allegation." At
no time did his office have possession of the disputed substance, he
said.

The battle started when Chowchilla officers issuing a parking citation
reported finding about 6 grams of marijuana, or one-fifth of an ounce.

Celli told officers he had medical marijuana authorization issued by a
cannabis cooperative. He also advised officers they could find more in
the car; they discovered an additional 15.5 ounces.

Chowchilla's city-contracted lawyer, Neal Costanzo, said returning the
marijuana might be a crime under federal law.

"The DEA knows about this stuff, and they're monitoring the situation
very carefully," Costanzo said.

In November 1996, California voters approved Proposition 215, which
allowed medical marijuana use. The measure was supported by the U.S.
Supreme Court, but justices did not change the way federal law
enforcement treats marijuana use, even when it meets medical use guidelines.

Chris Warner, acting agent in charge of the Fresno DEA office, said he
couldn't comment about investigations. He reiterated that federal law
does not allow for medicinal use of marijuana and that state courts
have no jurisdiction over federal agents.

"Small amounts of marijuana are not exactly high on our radar screen,"
Warner said. "If there's marijuana in front of us, obviously, we're
going to seize it."

In the Clovis case, Gary Ainsworth, 43, and his wife, Paula, 46, were
growing marijuana in the back yard of their home. When local teenagers
saw it creeping over a wall, they tried several times to climb into
the yard to take some. Gary Ainsworth said he did not believe any of
the drug was taken because his dogs were threatening.

The couple uses the drug for pain relief. She has chronic back pain
that Vicodin, which makes her ill, can't relieve; he has
diverticulitis and has undergone three stomach surgeries.

"You don't have any side effects from marijuana," he said.

The Ainsworths called Clovis police repeatedly for assistance when the
teens began climbing the wall. When officers arrived, they suggested
the Ainsworths conceal the plants or cut them back.

"They were growing marijuana in the back yard that was visible, and
kids were hopping the fence," said Janet Stoll-Lee, a Clovis police
spokeswoman. "They were asked several times to cut it back or conceal
it. It was a nuisance, and, for all intents and purposes, they were
inviting the kids."

In September, the Ainsworths were arrested for cultivating marijuana.
The Ainsworths' certification did not prevent their arrests, a jail
stay, bail and attorney costs.

The following week, after investigators obtained a search warrant,
they removed seven 5-foot-tall plants and packaged marijuana.

They also charged the couple with an additional felony: cultivation in
the commission of a felony because they had a shotgun.

Stoll-Lee said Fresno County has a "zero tolerance" policy for
marijuana, even for medical uses.

Fresno County sheriff's Lt. Rick Hill, who commands the Fresno County
sheriff's narcotics enforcement team, said medical marijuana use is a
defense in court but does not prevent arrest.

"Until we can establish these are legitimate medicinal marijuana
users," Hill said, "it doesn't keep them from going to jail. It's just
a defense."

As more medical users begin to emerge, Hill said, the county may look
at other avenues for prosecution, perhaps moving the cases into
federal court.

"We don't want to have people coming into the Sheriff's Department and
have us hand them over marijuana," he said. "We are abiding by court
orders. If a judge orders us to release it, we will, reluctantly."

But he said a policy outlined in the state health and safety code may
give law enforcement greater latitude to deal with those using medical
marijuana.

The code has to be adopted on a county-by-county basis and requires
users to present a photo identification card. The county would have a
24-hour, toll-free phone number to check the card's validity and a
date of expiration.

"If they set up this program, they would show us this card ... then we
may have to back off," Hill said. "Everybody wants to be compassionate
for the people who really need it."

In March, the Ainsworths were exonerated of all charges and their case
was dismissed.

Fresno County Superior Court Judge Alan Simpson ordered their
marijuana returned, saying the Ainsworths are "qualified patients ...
entitled to legally possess and cultivate medical marijuana for their
purposes."

All property taken from the Ainsworths -- including their shotgun and
now-withered plants that were in storage for more than seven months --
was returned last week.

"We have been scraping and struggling, and we have had to do without a
lot," Gary Ainsworth said.

Lawyer McPike, who also has filed a civil claim against the city of
Clovis, said the Ainsworths' situation is "a clear case where the war
on drugs is more harmful than the legally prescribed medication."