STATE COURT GIVES MEDICAL POT USERS NEW PROTECTIONS

Justices Rule Its Use Is OK When Prescribed By A Doctor

The California Supreme Court gave seriously ill patients who use marijuana
powerful legal protection Thursday, ruling that the state's medical
marijuana law can help pot users avoid being tried for drug offenses.

The unanimous ruling is the first time the court has addressed the scope of
Proposition 215, the 1996 voter-approved initiative that legalized the
medical use of marijuana. Eight states have passed similar laws.

The law allows doctors to recommend marijuana to relieve the often
debilitating symptoms of AIDS, epilepsy, glaucoma and multiple sclerosis as
well as the side effects of cancer treatment.

While federal agents have cracked down on clubs that distribute cannabis,
they have largely left it up to local law enforcement to go after
individuals who, on the recommendation of a physician, use or grow
marijuana for health reasons.

Thursday's ruling will result in fewer prosecutions and more acquittals,
said Gerald Uelmen, a professor at Santa Clara University Law School who
defended a Tuolumne County man with diabetes who was arrested for growing
marijuana. "People who medicate with marijuana are not second-class
patients," he said.

The state had argued that Prop. 215 merely gives patients a defense they
can raise once they get to trial.

But the high court said the initiative provided a much stronger shield,
giving patients a total defense during trial and a way to get the charges
dismissed long before then.

In powerful language, the court compared those who use pot for health
reasons with a patient receiving prescription medication.

Under Prop. 215, Chief Justice Ronald George said, "The possession and
cultivation of marijuana is no more criminal -- so long as (the law's)
conditions are satisfied -- than the possession and acquisition of any
prescription drug with a physician's prescription."

The status of the law has been in doubt since the U.S. Supreme Court ruled
in May 2001 that federal anti-drug laws make no exception for patients who
use marijuana for health reasons.

But in Thursday's ruling, the state court made it clear that last year's
ruling was strictly a federal issue that had no bearing on its decision.

Victory For An Ailing Man

The ruling was a victory for Myron Mower, who suffers from diabetes,
blindness, digestive dysfunction and other ailments. Prosecutors agreed
that Mower, who has been hospitalized several times, was "extremely ill."

He was convicted of drug offenses in 1998 after police found 31 marijuana
plants in his home -- 28 more than the county's three-plant limit. Mower,
40, said he had used marijuana for the past 20 years to relieve his nausea
and to stimulate his appetite.

A state appeals court in Fresno upheld his conviction, finding that the
initiative "simply gives those arrested a day in court."

On Thursday morning, the Tuolumne County man was awakened by his wife who
told him that he had finally won his four-year court battle.

"It's wonderful," he said of the decision.

The ruling means he won't have to go through the black market or to a drug
house to get marijuana. "It's dangerous," Mower said. "And every time you
go to one of those places, you take a chance of getting arrested."

'Strikes An Appropriate Balance'

State Attorney General Bill Lockyer, whose office had argued in favor of
Mower's conviction, nonetheless praised the ruling for providing much
needed guidance.

"The court's decision strikes an appropriate balance in helping to ensure
that truly needy patients . . . will have access to this medicine under
California law," Lockyer said.

Medical marijuana advocates hailed the ruling as fulfilling the voters'
wishes. "What this decision does is finally provide relief for the common
patient in the community," said J. David Nick, a San Francisco attorney who
filed a brief on behalf of the National Organization for the Reform of
Marijuana Laws in Washington, D.C.

Since voters approved Prop. 215, Nick said, he has defended at least 50
patients who have been arrested on drug charges.

One area the court did not address was the different limits counties impose
on the number of marijuana plants patients are allowed. A bill pending in
the state Senate would set statewide procedures and standards for enforcing
Prop. 215.

In their ruling, the justices stressed that Prop. 215 does not give a
defendant total immunity from being arrested in the first place.

But the law "must be interpreted to grant defendant a limited immunity from
prosecution," George said in the court opinion.

That means that a patient who is using marijuana on the recommendation of a
doctor can rely on the law to ask a judge to immediately dismiss the charges.

If the case goes to trial, the court said, a patient merely has to raise a
"reasonable doubt" to be acquitted of drug charges.

"It's the most protective standard for the defendant," said Ann Brick, an
attorney for the ACLU in Northern California, which filed a brief in
support of Mower.

"As long as a jury thinks that the act might apply," she said, "that's
enough for an acquittal."