SUPREME COURT TO CONSIDER MARIJUANA LIMITS

Last Wednesday the California Supreme Court unanimously agreed to
hear the case of California vs Patrick Kelly to determine whether any
limits imposed by the legislature to the Compassionate Use Act is
constitutional.

While the California Supreme Court takes up the issue, the existing
limits in the California Health and Safety Code remain in effect
throughout much of California. For Mendocino County, the limits are a
bit murkier as the ongoing legal challenge to the portion of Measure
B, which had the county adopt the state limits may await the final
Supreme Court decision.

Superior Court Judge John Behnke in his August 8 decision on the
challenge to the Measure B limits ruled "if the state legislature
cannot amend a state law passed by initiative (the Compassionate Use
Act) by passing specific legislation certainly the electorate of a
county can't amend a statewide initiative by passing a local
ordinance or initiative."

While this decision was made prior to the Supreme Court accepting the
Kelly case for review, Behnke cited the more recent appeals court
ruling from July 31 of California vs Phomphakdy as raising similar
issues to the Kelly case although it cannot be cited for 30 days and
also may be accepted by the Supreme Court for further review.

The Behnke decision leaves the county effectively without any new
guidelines for law enforcement, although the statewide limits appear
to serve as a minimum protection for medical marijuana users, at
least until the Phomphakdy case either becomes law on August 30 or is
accepted for Supreme Court review.

A review of California vs. Patrick Kelly:

A Los Angeles County medical marijuana case, which most agree would
never have seen a courtroom in Mendocino County, has raised questions
on whether any limits imposed by the legislature to the Compassionate
Use Act is constitutional.

The Court of Appeal in the case of California vs. Patrick Kelly ruled
limits on medical marijuana possession imposed by the Health and
Safety Code to be unconstitutional. In July, the state Attorney
General petitioned the state Supreme Court to review the case. On
August 13, the Supreme Court agreed to hear the case, leaving in
place the current provisions of the Health and Safety Code.

In California vs. Patrick Kelly, the appeals court overturned Kelly's
2006 conviction for possession of more than an ounce of marijuana for
which he received a sentence of 2 days in jail and 3 years probation.
The jury was asked, but declined, to convict Kelly of possession and
cultivation of marijuana for sale.

A summary of the case reveals a substantially different prosecutorial
atmosphere in Los Angeles County than prevails in Mendocino County.
According to court records, Kelly suffers from several ruptured
vertebrae causing severe back pain, as well as mood disorders,
hepatitis, nausea and lack of appetite, which he had tried treating
with epidurals, pain therapy, hot and cold braces, nerve stimulators
and medication. Dissatisfied with this treatment plan, in part due to
the cost of pain management pills, Kelly sought a recommendation to
use marijuana, which he received in 2005.

Unable to afford marijuana from a dispensary, Kelly began growing a
few plants at his home, consuming between one and two ounces per week.

Based on a tip from an informant and the visibility of some pot
plants in the backyard, law enforcement officers obtained a search
warrant for Kelly's home and confiscated 12 ounces of processed pot
stored in 2-ounce baggies, seven potted marijuana plants, a loaded
gun in the nightstand and a scale. Kelly had taped a copy of his
valid medical marijuana recommendation to the garage door including a
phone number where it could be verified 24 hours a day, keeping the
original copy in his bedroom. The deputy called and verified the
validity of the recommendation. One plant had a homemade trip wire
constructed from Christmas wrapping and bells.

Because Kelly had about 4 ounces more marijuana than allowed under
the California Health and Safety Code and did not have a special
doctor's recommendation to exceed the code amount, he was arrested
for cultivation and possession of marijuana for sale. The charges
were filed despite the lack of any evidence associated with the sale
of marijuana such as nickel and dime bags, pagers, cell phones,
pay-owe sheets, money, safes or elaborate growing systems at the
Kelly residence. Kelly denied ever selling marijuana.

The case went to a jury trial. During the trial, according to the
appeal, the prosecutor improperly instructed the jury that because
the Health and Safety Code set an eight-ounce possession maximum for
medical marijuana, the possession of more, which was not specifically
authorized by a recommendation, was illegal. The case was overturned
and a new trial ordered.

Although the court also declared the current Health and Safety Code
limits unconstitutional, when the Supreme Court agreed to take up the
case, that declaration was set aside pending the outcome of a future
Supreme Court ruling.