ACTIVIST FIGHTING FELONY DRUG CHARGES

LONG BEACH When narcotics police raided David Zink's Long Beach home two
weeks ago, the brazen homeowner led officers straight to his marijuana
garden.

Zink openly admitted that he grew cannabis. He also admitted that he picked
it, dried it and smoked it.

But he didn't admit to breaking the law. And the 55-year-old
medicinal-marijuana activist vows he never will.

Facing three felony charges and up to eight years in prison, Zink's case is
widely viewed as Long Beach's first true test of Proposition 215, a 1996
state law allowing chronically ill patients or their caregivers the right to
cultivate and possess marijuana with a doctor's prescription.

The marijuana garden at issue consisted of 30 plants, 3 feet to 7 feet high,
and was the nucleus of what Zink describes as a three-man co-op. He says he
and two friends, each with serious and painful illnesses, were growing a
year's worth of cannabis for their own use.

Zink's disability, he says, is caused by severe arthritis as well as nerve
damage to his left leg, knee and hip as a result of industrial accidents.
One of his friends has epilepsy and a degenerative disease. The other has
cancer.

Zink said all three had doctors' notes, copies of the law and clear
consciences when the Long Beach Police Department knocked on his door Aug.
10.

Officers dug up the plants and carted Zink off to the police station,
leaving his "growing partners" behind. Zink initially was held on $500,000
bail but later released on his own recognizance.

Today, Zink faces a preliminary hearing in Long Beach Superior Court. He
says he is confident that the case will be disposed of quickly and he's
determined to change the way Long Beach deals with Prop 215 cases.

"Mark my words," Zink commands, "What we will get out of this is an
ordinance in Long Beach."

Prosecutors are equally as confident in his guilt.

Under the law, there are only two ways to grow marijuana legally: to be a
patient with a doctor's note, or to be a primary caregiver to patients with
doctors' notes. A caregiver is defined as someone who provides all care, not
just medical marijuana, to a patient.

Zink may be a patient, says Long Beach Deputy District Attorney Karen
Thorpe, but he's nobody's caregiver.

"In this case," Thorpe says, "the defendant had far in excess of what an
expert would say would be used for his personal use."

Andrea Baous, a Long Beach prosector with a background in narcotics cases,
stresses there's no section in the law allowing patients to grow for others
in a "co-op" situation.

"We support the law in all respects," Baous says. "If anybody has a
legitimate medical purpose for using it, of course they would fall under the
law and we would not be prosecuting. But (there are) circumstances where we
feel people are using it as a ruse or a smoke screen to circumvent the law."

Chance to be lawful

To Bill Britt, one of Zink's growing partners and an active Long Beach
spokesman for disabled people, the case is a travesty of justice.

Britt suffers from epilepsy and what he terms post-polio syndrome, which
causes a series of deteriorating ailments. He says his epilepsy medication
results in loss of sleep, lack of appetite and muscle twitching, all of
which cannabis can counter almost instantly. The plant also helps counter
his depression and dulls his pain without numbing his body entirely, he
says.

When Prop 215 was passed four years ago, Britt says, he thought people like
he could relax. They were no longer breaking the law. They didn't have to
purchase pot from questionable sellers on the streets.

"I thought it was my chance to no longer live my life as a criminal," Britt
says. "It's just so sad that there's this law and we're still living in
fear."

But the issue is at a boiling point.

Opponents maintain that the law is merely a back-door route to legalizing
marijuana for all. And the federal government still considers possession a
crime, regardless of illness.

What governments do

Some California counties have taken active roles in crafting Prop 215 to fit
community standards. And Attorney General Bill Lockyer so far has taken a
hands-off role, letting local authorities call the shots.

Last month, San Francisco District Attorney Terence Hallinan announced that
ID cards entitling people to use medical marijuana would be sold for $25 and
a doctor's note.

Meanwhile, the Oakland City Council approved a policy letting
medical-marijuana users stock a three-month supply of the drug.

But most jurisdictions, including Long Beach, have less defined policies on
how to implement Prop 215.

Long Beach City Prosecutor Thomas Reeves, who handles misdemeanor drug
cases, acknowledges that medicinal-marijuana use is a gray area in the law,
and is made even murkier by the fact that "the feds are 100 percent against
it."

"We all rely on federal grants," Reeves says. "Nobody wants to put that at
risk. On the other hand, nobody wants to ignore the will of the people, so
to speak."

For now, prosecutors and police here seem to promote a "case-by-case"
management theory.

"I'm not going to make it a criminal offense," says Reeves of medicinal
marijuana. "But I'm going to make (users) prove it because otherwise I'm
going to see every bogus, lame excuse in the world."

Busted

Says Britt: "What that means is they arrest you case by case and let the
courts sort it out."

Actually, that's not far from the truth.

LBPD Sgt. Steve Filippini says doctors' notes can't be verified on the spot,
and simple possession of marijuana is still probable cause for arrest.

"We'll get a hold of your doctor," Filippini says. "But, right now, you're
under arrest."

He adds of the Zink case: "It wasn't like the guy had a couple baggies of
marijuana ... and a prescription sitting next to it."

Filippini concedes that there may be room for more training on Prop 215 if
the Zink case proves that police and prosecutors erred.

"If it turns out that everything Zink said was true," Filippini says, "of
course, we as a police department don't want to put innocent people in jail.
So maybe we would hold a training course on this."

Number crunching

But there are still plenty of issues to sort out before a judge.

Police estimate that each of Zink's female plants, the only ones capable of
sprouting buds, would yield an average of two and a half pounds of usable
marijuana, says prosecutor Thorpe. If all 30 plants are females, Zink could
have yielded up to 75 pounds of cannabis, she says.

Police have said that amount could be worth between $75,000 and $100,000 on
the street.

THC charge

Furthermore, Thorpe says, possession of marijuana is not the only charge
pending against Zink. Also found in Zink's home was equipment used to make
concentrated tetrahydrocannabinol, or THC, a hallucinogenic chemical and the
most active ingredient in marijuana.

For that, Zink is charged with one count of manufacturing a controlled
substance.

"There is no 215 defense for (THC)," says John Harlan, the prosecutor
handling Zink's preliminary hearing.

Zink counters the allegations one by one.

First, he says, he and his friends didn't know how many of the plants would
be female when they planted the cannabis seeds, and still don't. The actual
amount, therefore, is difficult if not impossible to determine.

Second, Zink says that his friends could not grow the plants at their homes
but cared for them as much as he did.

"I wasn't a caregiver," he says. "I never called myself a caregiver, nor did
they consider me their caregiver."

And, finally, Zink says, he was simply trying to come up with an edible form
of marijuana with the THC-extraction equipment. "I don't like to smoke," he
says.

At the least, the Zink case promises to define more clearly the distinction,
if any, between caregiver and co-op. Zink says his hopes are set even
higher: that the case will firm up a relatively squishy law.

"I don't want an us-versus-them situation," he says of pot users and police.
"They are my police officers too, and I want them to be relieved of this
horrible burden of the defining the law."