STATE HIGH COURT BACKS POT LAW

The California Supreme Court decided Thursday that the state's medical
marijuana law can be used as a defense against criminal charges but does
not insulate people from prosecution.

The ruling, which left substantial areas unclear, left law enforcement
officials free to arrest patients or caregivers who they believe are
growing more pot than required for specified medical needs.

But the court's ruling said defendants are likewise free to invoke the
Compassionate Use Act both before and during trial.

The 1996 act decriminalizes possession and cultivation of marijuana for
patients and their primary caregivers who use or dispense the drug on the
written or oral recommendation or approval of a physician. It does not set
out acceptable amounts.

Thursday's ruling marks the first time California's highest court has
addressed Proposition 215, the controversial initiative that runs counter
to the federal government's zero-tolerance policy.

The case overturns the 1997 felony conviction of blind diabetic Myron Mower
of Twain Harte, in Tuolumne County, who was arrested after police spotted
31 marijuana plants growing in his front yard. Mower was using the
marijuana after his doctor suggested it to treat nausea and weight loss.

The decision comes as federal drug agents crack down on medical marijuana
in states where it's legal for patients who have doctors' authorization to
use marijuana for medicinal purposes.

Gerald Uelmen, a Santa Clara University School of Law professor, said the
decision will reduce prosecutions throughout the state.

"It's a wonderful victory for patients," said Uelmen, who argued the case
for Mower.

The lengthy unanimous opinion acknowledges a footnote in a U.S. Supreme
Court ruling last year that held that there is no "medical necessity"
defense under the federal Controlled Substances Act, which bans the
manufacture and distribution of various drugs, including marijuana.

"The court's holding, which involves the interpretation of federal law, has
no bearing on the questions before us, which involve state law alone,"
Thursday's opinion states.

The California court ducked the issue of how much marijuana is appropriate
for personal medical use, declining to establish a standard that would
apply in all 58 counties. Locally imposed limits on the number of plants
allowed range from three to 99.

The unanimous opinion was written by Chief Justice Ronald M. George.
Supreme Court Associate Justice Marvin R. Baxter recused himself due to a
conflict.

The court ordered a retrial for Mower, ruling that the Tuolumne County jury
in his case had been given erroneous instructions by the trial judge on the
burden of proof required for conviction.

Superior Court Judge Eric L. Du Temple had told jury members that it was up
to Mower to prove by a preponderance of the evidence that his 31 plants
were within personal use guidelines. In its ruling, the Supreme Court said
the California Evidence Code requires that a defendant in a case such as
this merely has to "raise a reasonable doubt as to that fact."

Attorney General Bill Lockyer said Thursday in a statement that the
decision "changes the standard jury instruction that has been employed ...
throughout California, (but) it is unclear what impact it will have on
previous medical marijuana convictions."

Uelmen said the court's opinion does two things.

"It confirms a right to litigate the issue of medical necessity prior to
trial," and, in cases that reach trial, "it reduces the burden of proof" on
the defendant, he said.

Uelmen said the court's decision also equates the possession of marijuana
for genuine medical reasons to the possession of prescription drugs.

That means "marijuana plants in the possession of a seriously ill person
should be treated the same as a bottle of pills," Uelmen said.

Lockyer, whose office prosecuted the case, applauded the decision.

"As a supporter of Proposition 215, I believe that the court's decision
strikes an appropriate balance in helping to ensure that truly needy
patients whose doctors have recommended medical marijuana to alleviate pain
and suffering related to serious illnesses will have access to this
medicine under California law," he said in a written statement

J. Tony Serra, a San Francisco criminal defense lawyer whose firm defends
many marijuana prosecutions, predicted "fewer arrests and many more cases
thrown out before trial." He said he expects other states to follow the
lead of California, the first state to legalize the drug for medical purposes.

Uelmen said he was disappointed that the court declined to address the
issue of acceptable amounts of medicinal pot.

"This is a state law that demands a statewide standard, but we will have to
wait for another day," he said.

Ideally, he said, Lockyer and Gov. Gray Davis would step up and establish
the guidelines.

"But," he added, "it probably won't happen."

The Legislature passed a law-enforcement-backed bill, SB 187, to set
statewide standards and procedures for Proposition 215. But the measure
died when Davis warned against sending it to him. A Davis press aide said
last month that the governor was still studying medical pot.

Davis could not be reached for comment on the court's ruling Thursday evening.

The court found Mower to be a legitimate marijuana patient as defined in
the state law, but the projected size of his harvest was hotly disputed.

Mower's expert witness testified the 31 plants probably would yield a
year's supply of 4.35 pounds, well below the 6 pounds the federal
government provides annually to patients in its Investigational New Drug
program.

The prosecution's expert testified the plants would yield between 31 and 62
pounds.

Mower "unquestionably was a patient -- an 'extremely' ill patient who
suffered from 'diabetes and all its complications,' " the opinion says. It
says he grew and used marijuana at the direction of a physician.

The only question is whether the crop went solely for his own medical purposes.

"Had the jury properly been instructed that (the) defendant was required
merely to raise a reasonable doubt about his purposes ... it might have
found him not guilty," the opinion says.