LAW FICKLE IN USE OF MARIJUANA

Growers, Smokers And Officers Face Different Rules In Different
Jurisdictions

The 100 marijuana plants that once flourished under grow lamps in Mike Lee's
Crockett home now sit, boxed and browning, in a police evidence locker.

To Lee, a 52-year-old handyman, they are confiscated medicine for chronic
gastritis, a condition he claims he has suffered for years, and one that
calls for at least five joints a day.

Detectives ran across the indoor garden and arrested Lee while investigating
a fire in his building. They see the plants as contraband, figuring it is
more marijuana than one man needs, regardless of his doctor's note.

"We look at it on a case-by-case basis. If there are just a couple of plants
and they have a doctor's note, the cops allow them to keep it," said Jose
Marin, a Contra Costa County deputy district attorney who handles felony
drug cases. "But 100 plants is a lot more than we estimate someone would
need."

Lee's is one of a growing number of medicinal marijuana cases that have
local authorities flying solo, without guidance from the state over how much
marijuana is too much under Proposition 215. Four years after voters
legalized marijuana for personal medical needs, marijuana smokers and the
officers who arrest them now face widely different rules, depending on the
county.

"Contra Costa County is not a pot-friendly place," said Lee. "So in the long
term I think it may be better to move."

He wouldn't have to move far. Twenty miles south, in Oakland, possessing 100
plants is considered reasonable for medical users.

In most counties, however, marijuana growers and prosecutors continue to
play a guessing game, and few cases make it to trial.

Marin and other county prosecutors blame state officials for failing to
agree on a standard for how to interpret Prop. 215, or even that a standard
is needed. Marin readily admits he is no expert on how much marijuana
patients need, and would welcome state guidelines.

But, to the frustration of some local officials, state Attorney General Bill
Lockyer in September told all the state's district attorneys that he had no
intention of offering guidance on Prop. 215.

"This has always been a health debate and we need valid medical research" on
how much different patients need before pursuing any guidelines, Lockyer
said in an interview.

In the meantime, a handful of counties have set off on their own, issuing
identification cards for bonafide patients or setting standards for
allowable quantities.

In Oakland, a patient with a valid recommendation can have six pounds of
marijuana or 144 plants in different stages. The amounts were suggested by a
panel of advocates and approved by the City Council in 1998 as a guideline
for indoor growers.

In Mendocino County, a patient can possess 12 immature plants or six
flowering plants, in addition to two pounds of ready-to-smoke cannabis.

In Orange County, a person may keep two plants.

That standard appears to be based on a bulletin issued in 1997 by former
Attorney General Dan Lungren, a Prop. 215 foe who said anything over two
plants is more than enough for personal use.

It was the closest the state has come to a uniform directive. But Lungren is
out of office, and Lockyer has scrapped that standard. The Attorney
General's stance has frustrated many prosecutors and law enforcement, who
claim the lack of clear direction has given the edge to flagrant violators.

"People say they are a caregiver for 10 people but they are growing 800
plants," said Contra Costa County sheriff's Detective Gary Gifford, who
works in the narcotics unit.

"I have seen crops that are worth anywhere from $100,000 to a quarter
million," he said. "You serve a warrant and find several hundred plants and
then are told they are a grower for medical marijuana patients. It is very
frustrating."

Prop. 215 legalized the possession and cultivation of marijuana by patients
and their primary caregivers when use of the drug has been recommended by a
physician. It did not establish what amount of the drug should be considered
legal.

The initiative also called upon the state and federal government to develop
a plan for the safe and affordable distribution of marijuana to all patients
in medical need. But federal government challenges to medicinal-use measures
in California and other Western states have drained much of the political
will to develop uniform standards.

The U.S. Supreme Court last month agreed to rule on the rights of medical
pot users to violate federal drug laws because of overriding medical
necessity. But that decision will do little to help prosecutors or police
resolve a growing quandary: How much marijuana is too much?

The consensus has been that implementing Prop. 215 is not realistic without
state law to add specifics, said Larry Brown, executive director of the
California District Attorney Association.

"We are dealing with a terribly drafted law that is vague in the extreme.
Everyone is working in the dark with a blank canvas," he said. "There are
experts opining about how much a person needs. There are migraines versus
terminal cancer. It is not an easy task. It is incumbent upon the
Legislature to fix the problem."

Lockyer agrees the best way to offer guidance is through legislation. Until
that happens, he said he respects the communities that craft their own
standards.

Last year, Lockyer's office gathered a panel of law enforcement, doctors,
lawyers and advocates to help fill in the gaps of Prop. 215. The group
proposed a statewide registry system and suggested limits for minors and
prisoners. It did not set guidelines on amounts of marijuana, suggesting
those regulations be issued by medical professionals.

A bill based on the panel's proposal, however, failed after Gov. Gray Davis
announced he would veto it. Lockyer, who said he has seen ill family members
prescribed morphine, but forbidden from using marijuana, said he is
hamstrung by Davis' resistance.

"All I am asking him to do is fix this mess," Lockyer said. He plans to
reconvene the panel and revive the bill in the new year.

Robert Salazar, a spokesman for Davis, said the governor is opposed to
medical marijuana and has no plans to endorse Prop. 215.

"There is a conflict between state law and federal law and the governor
stands by the federal law," said Salazar. "Marijuana remains an illegal
substance with or without Proposition 215."

Some prosecutors said Lockyer is passing the buck, and could ease the
confusion with simple statewide guidelines, regardless of legislation.
Lockyer maintains it is neither legally necessary nor appropriate for him to
set standards.

"It will just not be enforceable," he said.

Brown, of the district attorneys association, said a number of jurisdictions
"have bravely gone forward" to create a threshold of what is permissible.

A few, like Santa Clara County, have issued zoning restrictions on marijuana
distribution clubs. Prop. 215 is silent on whether marijuana clubs are
permissible, and federal officials have taken a hard-line stance against the
dispensaries, shutting them down in some cases.

Santa Clara supervisors passed an ordinance restricting medical marijuana
clubs to commercial industrial zones and set up an approval process that
requires the county Public Health Department to verify every doctor's note
approving the use.

"It is so onerous," said Assistant District Attorney Karyn Sinunu.

If the police pick up someone with a pound of marijuana, prosecutors call
the doctor to find out if they really prescribed the marijuana, Sinunu said.
The county has had two cases where police returned marijuana to patients. It
has never had a case go to trial.

"We would love to have guidance, equal protection and a uniform process,"
said Sinunu. "Until then, we have encouraged our cops to make the
determination using their own judgment.

"Lockyer is right and we are right. If we had guidelines, at least
individuals would be treated the same way. But it would not be binding. We
need legislation," said Sinunu. "The big disparity comes in dosage. How much
do they need?"

In Mendocino County, part of Northern California's marijuana-growing
heartland, District Attorney Norm Vroman said his office conducted vast
studies on growing specifications and came up with an "educated guess."

Vroman said the county has registered about 300 legitimate users, calling
doctors to verify prescriptions. Patients receive identification cards from
the sheriff's department.

Along with setting a maximum quantity of marijuana, "having issued cards and
guidelines for police greatly smoothed out our operation," said Vroman.

San Francisco is another county that has approved medical marijuana patient
cards. But others, like Contra Costa, refuse to go that route.

"That would be something the individual cities would have to do," said
Marin.

Marin said he handled about a dozen marijuana cultivation cases in 2000. In
about half the cases, the suspects said they were growing for medical
reasons. None has gone to trial.

"Most of them have pleaded guilty because they claimed to have a problem but
didn't have any documentation," said Marin. "That leads me to believe they
were not being truthful."

Like Contra Costa, Alameda County has never seen a medical marijuana case go
to trial since Prop. 215. And many counties that have taken such cases to
trial have been disappointed by juries who side with the smoker.

"The idea was to keep the law as open as possible," said Marsha Rosenbaum,
director of the Lindesmith Center, the drug policy reform organization that
helped fund the Prop. 215 campaign. "It was written so it would be hard to
get convicted. We would like law enforcement to just get off it and allow
people to use it if they need it."

In a closely watched case that ended this month in largely conservative
Placer County, a jury deadlocked on marijuana possession charges against
Steve Kubby, an activist who has been involved in the medical marijuana
movement since the 1990s. He was arrested in January 1999 after authorities
found 265 marijuana plants in his home.

Some observers believe the case could set a standard for how many plants law
enforcement will let a patient grow. Without legislation, only trial
decisions can help govern what police and prosecutors do with medicinal
marijuana cases, said Brown. If jurors can't convict, it sends messages not
to prosecute, he said.

Lockyer said one jury's opinion can't replace sound legislation.

"The Kubbys claim they need hundreds (of plants) and get off, but a district
attorney in another county can still prosecute someone with 10 plants,"
Lockyer said. "That is not a good way to impose rules."

Lockyer and others have called upon federal officials to change marijuana's
classification under federal drug laws to permit a prescription under
medical supervision. Such a change would remove the clash between federal
law and Prop. 215.

The U.S. Supreme Court is also expected to have an upcoming decision on the
right to distribute marijuana based on medical necessity.

"It's the 'I stole a boat, but it was to save a drowning man' defense," said
Ellen Komp, an attorney at Lindesmith. "They are breaking the law but they
can do it to save someone else."

Even if the court backs the argument, medicinal marijuana users would have
to meet a much higher obstacle than the vague prescriptions of Prop. 215. It
may not help people like Mike Lee, who awaits word on whether Contra Costa
prosecutors will file charges against him.

"If I get my plants back, they will probably be dead," said Lee, "and if I
were an AIDS patient, I would be dead, too, before this is resolved."