STATE HIGH COURT WEIGHS MEDICAL MARIJUANA LAW

LOS ANGELES -- Taking up California's medical marijuana initiative for the
first time, the state Supreme Court showed strong interest Tuesday in
making the law work more smoothly for patients who come under police
scrutiny and no interest in following the lead of disapproving federal
authorities.

During oral arguments in an appeal of a Tuolumne County man, the justices
concentrated on working out a procedure for legitimate pot users to get off
the hook early.

Proposition 215, passed in 1996, said seriously ill patients using
marijuana on a doctor's recommendation are "not subject to prosecution,"
noted Chief Justice Ronald George. He asked, "Does that not imply one does
not have to run the gamut" of the criminal justice system -- from arrest to
jury verdict?

Deputy Attorney General Maureen Daly, who urged the court to uphold Myron
Mower's criminal conviction for growing 31 marijuana plants, said the
initiative meant only that legitimate pot users are "not subject to
successful prosecution" -- meaning they have only a right to persuade a
jury to give them a break.

But Justice Carlos Moreno pointed to other references in the initiative's
text that supported George's interpretation and appeared to provide
legitimate users immunity from prosecution.

In ruling against Mower, the Court of Appeal relied on conflicting language
in the voter's ballot pamphlet.

The Supreme Court is using the case to set enforcement rules for
Proposition 215, which did not answer key questions: What must legitimate
patients do to stay out of jail, and how much pot is permissible?

The justices' review coincides with a dramatic increase in federal raids on
medical marijuana dispensaries following a series of defeats for
Proposition 215 in the federal courts.

But while federal law enforcement concentrates on what it views as drug
trafficking, the gravely ill patients who were the focus of Proposition 215
are much more likely to come in contact with local authorities and state
courts, as Mower did. In most of their cases, the state Supreme Court's
word will be final.

Blind and suffering from end-stage diabetes, Mower has used marijuana to
control nausea and vomiting. He was placed on probation for growing it in
1993 and convicted again in 1998, two years after passage of Proposition
215. He again was placed on probation, fined and, according to his court
brief, forced to do without the only drug that works for him. He is now
unable to keep food down and has wasting syndrome, his lawyers say.

After the initiative passed, Mower claims he told both the Probation
Department and the sheriff he would resume growing the weed but did not
wish to violate the terms of his probation. For a while all went smoothly.
County officers who visited him in February 1997 found seven pot plants but
left him alone.

They returned that July, however, and found 31 plants. Some experts in the
case testified that was less than a year's supply, but Daly told the
Supreme Court on Tuesday that Mower "had way more than for personal use."

The officers seized 28 of the plants and arrested Mower under a three-plant
limit the sheriff had adopted. No one had told Mower about the new rule,
defense lawyer Gerald Uelmen said Tuesday.

The sheriff's policy is one of a hodgepodge of guidelines that permit
medical pot users in some counties to grow enough plants for a steady
supply while users elsewhere face strict limits or no standards at all.

Mower "wouldn't be here" appealing a conviction if he lived in Sonoma or
Del Norte counties, where the limit is 99 plants, Uelmen told the justices.

But then there are defendants like Mower, who was put through what his
lawyers called a "physically agonizing three-day trial," in which he bore
the burden of proving he was a legitimate medical user. Though his doctor
supported him, the jury was not convinced.

Uelmen is urging the Supreme Court to adopt a procedure that would bar
criminal charges if a patient shows he has a doctor's recommendation and a
reasonable supply of pot. If the case goes to trial, the lawyer said, then
the prosecution should have to prove beyond a reasonable doubt that the pot
use isn't legitimate.

Mower's is one of about 25 Proposition 215 cases to reach the appellate
court, according to the state Attorney General's Office. So far the only
reported appellate decision on permissible quantities came in a case
involving 2 pounds of marijuana seized in a traffic stop in Contra Costa
County. The Court of Appeal in San Francisco said the quantity, as well as
the "method, timing and distance of transportation" all depend on what's
reasonably necessary for the patient's current medical needs.

But that case was dropped before any court defined what "current" means,
and the justices made little headway Tuesday.

"That day, that month or what?" asked George. The answer could be critical
in cases like Mower's. The court's ruling is expected within three months.

Meanwhile, both houses of the Legislature have passed a
law-enforcement-backed bill, SB 187, to set statewide enforcement standards
and procedures for Proposition 215. But the author says the governor's
office has advised him not to send it to Davis' desk.

Sen. John Vasconcellos, D-Santa Clara, said he had no clue about the
governor's misgivings.

A Davis press aide said the governor has not taken official position on the
bill, adding that Davis is looking for evidence of the efficacy of medical
marijuana.