THE FIGHT OVER MEDICAL MARIJUANA: LEGALIZING MEDICINE

For those on both sides of the medical marijuana issue, it might as
well be the late 1920s - the legal debate over pot as medicine
resembles in some ways the waning days of prohibition.

Though it's been more than three years since voters in California
passed Proposition 215 medical marijuana initiative, the lack of
specific guidelines for its implementation has left both patients and
the police uncertain how and when medical pot should be used and purchased.

Measures to resolve current conflicts have failed to make it out of
committee in Sacramento, including one that would have set up a
voluntary statewide registry of marijuana patients. That bill was
withdrawn last year by its author, Democratic legislator John
Vasconcellos, under pressure from Gov. Gray Davis.

Supporters of the measure hoped putting medical-marijuana under the
control of state health officials would protect patients from arrest.

Vasconcellos has said he will try to hammer out a compromise bill this
year that will win support from both law enforcement and the medical
marijuana community.

Until then, both sides must look to the courts, resulting in an uneasy
stalemate.

Much of the current legal debate is over "access" to marijuana for
medical purpose.

Even with a doctor's recommendation, many persons too ill or unskilled
to grow their own pot, risk arrest by resorting to buying it on the
street, says local attorney Dale Rasmussen.

The Chico lawyer, who has represented several local medical marijuana
defendants, sees several other problems with the current medicinal pot
law.

As it is currently written, there is nothing to stop police from
arresting people even with valid medical recommendations, seizing
their pot, and refusing to return it, he notes.

Defense attorney Dane Cameron agrees that the rigid manner in which
Proposition 215 is currently being implemented "stands the system on
its head," by forcing people to prove in court they have the right to
smoke pot with a doctor's recommendation.

"It used to be you're innocent until proven guilty," Cameron
said.

Not so, says District Attorney Mike Ramsey.

"Prop. 215 doesn't make marijuana legal in California, it merely
provides an affirmative defense" in court for people who have a
doctor's recommendation. It's similar, Ramsey says, to "self-defense
for murder."

While Ramsey believes that "the vast majority of the medical
community" disagrees that pot has any medicinal benefit, "nonetheless
it (Proposition 215) is the law in this state, and we are trying to
uphold that law by distinguishing between those who want to use the
law legitimately and those who are trying to use it as a cover for
their illegal use," said the DA.

Complicating the issue, Ramsey notes, is the federal Controlled
Substances Act, which the DA says makes it illegal to possess or
cultivate marijuana for any purpose - even as medicine in California.

Medical marijuana advocates won a minor victory in December when a
federal appeals court in San Francisco apparently ruled for the first
time that owners of a cannabis buyers' club in Oakland could use a
"medical necessity defense" when federal drug agents tried to shut
them down.

Heartened by the ruling, a Shasta County man, Chris Ward, has opened a
marijuana dispensary in downtown Red Bluff.

During one weekend "clinic," Berkeley psychiatrist Dr. Todd Mikuria
reportedly approved marijuana for 50 new patients at the Red Bluff
dispensary.

Bonnie Metcalf, who heads the Yuba County Compassionate Use
Cooperative, has recently gone before county supervisors in Yuba and
Butte counties seeking advice on how her group can help ill people
obtain marijuana without interference from the law.

Metcalf, who is in a wheelchair because of arthritis in both hips,
contends that until the law changes marijuana co-ops are a necessary
conduit "between ill persons and their medicine."

But Ramsey says California courts have consistently held that cannabis
clubs are illegal in any form.

He notes that Proposition 215 allows medical marijuana to be provided
to a patient only by a "primary care giver," who is personally
responsible for that person's housing and safety, a definition he
argues doesn't fit cannabis clubs or co-ops.

Not surprisingly, efforts to establish medical-marijuana cooperatives
in Butte County have met with stiff resistance.

In 1997 - one year after Proposition 215 took effect - Butte County
sheriff's deputies arrested David Kasakove on marijuana possession
charges shortly after he opened a highly-publicized marijuana co-op
out of his Nord Avenue "Everything's Hemp" store in Chico.

Last summer, deputies uprooted more than 175 plants in various stages
of growth and arrested three people in Cohasset and Paradise who
claimed they were attempting to grow and furnish "marijuana clones" to
those unable to grow pot themselves.

The trio, members of an organization calling itself the "Cohasset
Cannabis Commune Project," are awaiting what could be the first trial
in Butte County to test the limits of the state's existing medical
marijuana law.

Rasmussen, who defended Kasakove and who also represents one of the
pot-clone defendants, contends that both cases demonstrate the main
failing of Proposition 215: While the law allows medical use of pot
under a doctor's recommendation, it provides no means for them to
obtain it lawfully.

"People are allowed to use marijuana under Proposition 215 but where
do they originally get it? It's illegal to buy it and if they grow it,
where do they get the seeds to grow their own?" asks Rasmussen.

He says the law should be broad enough to help very ill people
cultivate marijuana.

"Many ill people don't have the garden space, skills or even the
strength to cultivate ... or have care givers who are able or willing
to do it for them," the Chico lawyer contends.

Rasmussen also says the law needs to be more specific regarding when
police can seize marijuana and should allow for "a speedy hearing
procedure to determine quickly whether there is medical marijuana
involved, whether the medicine should be returned and whether there is
a valid doctor's recommendation that would prevent criminal charges.

"It's not fair for a sick person to wait for a trial and then be found
not guilty because a jury determined it was medical marijuana," the
Chico lawyer maintains.

Since a doctor's recommendation, either written or oral, is
technically "hearsay," he said, he has had to subpoena physicians into
court to confirm the validity of marijuana recommendations.

"Clearly, that's not what Prop. 215 visualized; it puts a terrible
burden on the patient and doctor," the defense lawyer stated. "This is
just one of numerous ways that Prop. 215 is inadequately drafted."

Butte County Sheriff Scott Mackenzie, who admits that he didn't
support Proposition 215, says his officers will continue to bust
anyone caught generally with more than "five to 10" pot plants,
depending on size and potential yield.

Over that amount is indicative of an illegal sale, not personal or
medical use, says the local sheriff.

Ramsey said that in meetings with police he has encouraged officers to
make a determination on the spot whether a person has a valid medical
marijuana recommendation.

But if that cannot be done, the local DA has recommended that cops
take the person's plants "when there is more than reasonable for
personal use and then fight it out in court."

Ramsey who says he regards marijuana only as "an alternative medicine"
whose medicinal benefits have not been adequately tested , charges
that Proposition 215 was a "Trojan horse" whose overall objective was
"the wholesale legalization of marijuana."

The local DA points to the 50 or more marijuana recommendations handed
out in Red Bluff recently as indicative of how the law is being "misused."

"The proponents of Prop. 215 tried to sell the initiative to the
voters by saying this was intended to assist those folks with serious
medical problems," Ramsey said.

He said locally, people have been found holding medical marijuana
recommendations for "something as simple as depression and backache."

In more than one case, the district attorney says police have
encountered situations in which an individual's doctor has refused to
prescribe marijuana, but another physician with no familiarity with
the person's medical history has ordered pot "on the basis of a phone
call."

Cameron argues that police should not substitute their judgment for a
qualified doctor in determining whether to bust a medical-marijuana
patient.

"The police have to grow up and realize that Prop. 215 is the law in
this state," the defense attorney says bluntly.

Ramsey says the current conflicts come from "trying to legislate the
use of an illegal substance."

"If we're going to deal with this rather vague and difficult law, I'd
like to see some clarity to make clear that distinction between
medical and non-medical use," the local district attorney said.

"We need some clear guidance to get law enforcement out of the middle
of this controversy," said the DA.