TOKIN' ENFORCEMENT

Clouds Of Smoke Surround Legal Parameters Of The Medical Marijuana Proposition

Exhaling a deep lungful of cannabis smoke, Steve McWilliams smiled at
the news last week that new state Attorney General Bill Lockyer is
making medical marijuana a top priority.

"We're ecstatic! This is the very best possible news for people like
us," McWilliams said. "If Lockyer would simply agree to sit down with
us in good faith, we can solve this problem."

The "problem" is the workings of Proposition 215, the 2-year-old law
intended to allow seriously ill people in California to use marijuana
as medicine -- a law for which Dan Lungren, the state's newly departed
chief law-enforcement officer, had little use.

Joining forces with Clinton Administration officials, Lungren was
tireless in efforts to close the state's several dozen "cannabis
buyers clubs" through raids and court action, seeking to enforce
federal laws against marijuana distribution.

What Lockyer will do remains to be seen, of course.

But last week, the new attorney general vowed to make Proposition 215
work. "I think (Lungren) was overly zealous in continuing to oppose
(the medical marijuana law) even after the people had adopted it,"
Lockyer told reporters.

So on a sunny winter day, McWilliams, who displays a doctor's note
verifying that he suffers chronic pain from a series of car accidents,
re-lit his emerald-green bong and sat back to contemplate changes the
new year might bring -- for him and for the medical marijuana movement.

He runs Shelter From the Storm, now a fledgling cannabis club
providing the quasi-legal herb for about a half-dozen sick San
Diegans. Operating out of an upstairs apartment behind the Hemp Store
in Hillcrest, McWilliams has eight pot plants growing on the balcony
and many more under high-intensity lamps indoors.

And he doesn't care who knows it, even though he soon will go on trial
for cultivating cannabis.

McWilliams and fellow medical marijuana booster Dion Markgraaff of
Ocean Beach will test the legal limits of Proposition 215 when they go
on trial in San Diego Superior Court Feb. 10 on felony charges of
cultivating and selling marijuana.

It will be the first such case to go before a jury locally since
California voters overwhelmingly passed the medical marijuana
initiative in November 1996, said Deputy District Attorney Dave
Songco, who is prosecuting McWilliams and Markgraaff.

But while there have been no trials in San Diego involving Proposition
215, there have been several interesting developments regarding
marijuana in the two years since Californians took their historic
vote, including:

A full 20 percent of the American electorate has now passed medical
marijuana legislation, with voters in Arizona, Alaska, Oregon,
Colorado and Washington following California's lead in last November's
election. (District of Columbia voters also approved medical
marijuana, according to exit polls, but Congress won't allow voting
results to be revealed.)

The district attorney in San Francisco refused to take action against
the several cannabis clubs operating there, but they were closed
anyway following court action instigated by Lungren and federal officials.

City officials in Oakland tried to circumvent the court and have the
city's one club remain open by deputizing club leaders so they could
lawfully handle pot; a judge nixed that idea.

Meanwhile, 1997 saw a record number of marijuana offenses in the
United States -- 695,201, 87 percent of which were for possession,
according to the FBI.

In San Diego, felony arrests for marijuana fell in the five-year
period from 1993 to 1997 (down 30 percent for adults and 21 percent
for juveniles). But misdemeanor arrests skyrocketed, climbing 27
percent for adults and 47 percent for juveniles during that time.

Songco said that a few San Diego defendants charged with marijuana
offenses have tried using Proposition 215 as a defense in pre-trial
maneuvering, but until now their claims did not pass muster and all
wound up in plea bargains.

"From what I read, the defense isn't raised very often with any
legitimacy anywhere in California," said Songco.

"I did refuse to prosecute one case that police had referred because
it looked to me that the suspect had a legitimate need for the
marijuana and was trying to comply with the law," he continued.

Songco said many individuals may be discreetly and quietly "out there
using marijuana as medicine and complying with the law under Prop.
215, but I have no way of knowing how many. Nobody does."

"The cases we're prosecuting are for large amounts and it's very clear
the defendants are trying to use Prop. 215 as a shield," he said.
"We're not concerned with legitimately sick individuals trying to
comply with the law."

But trying to comply with the law is precisely the problem, according
to McWilliams and others in his club.

Among the questions they raise are:

- - How much marijuana is too much to be considered an individual's
medicine? Who can legally cultivate cannabis? Who can legally
distribute it? How can it be legally distributed? If it is sold, may
the seller earn a reasonable profit? If you are cultivating a large
quantity to share with other sick people, are you subject to arrest
and trial?

- - Tacked on the wall at Shelter From the Storm are about a half-dozen
letters from doctors authorizing the therapeutic use of cannabis for
individual club members, including McWilliams' letter.

- - He was arrested last January and authorities confiscated more than
400 marijuana plants and seedlings McWilliams says he was growing for
members of Markgraaff's San Diego medical marijuana club, who numbered
in the hundreds before the club officially disbanded following the
pair's arrests.

- - McWilliams said he is anxious to get his case, which has been
delayed several times, in front of a jury because he is confident he
will be acquitted under the spirit and letter of Proposition 215.

But Songco said large amounts of marijuana such as McWilliams
cultivated for distribution is a clear violation of the law.
McWilliams counters that some sick individuals may consume a pound or
two of the leafy "medicine" over the course of a year and several
hundred "desperately sick people were depending on those plants."

Those individuals, former members of the San Diego cannabis club, are
waiting to see if the upcoming trials serve to establish some kind of
medical marijuana protocols that "we can all live with -- they're
waiting for the smoke to clear, so to speak," said McWilliams.

"It is incumbent upon prosecutors to tell people what the law is,"
continued McWilliams, who notified sheriff's deputies of his
cultivation operation in Valley Center long before being busted there
last year.

"The real crime here is keeping this law vague and to keep harassing
and arresting people.

"I've never been convicted of anything in my life, but now I could go
to jail for almost five years and have a felony on my record forever,
even though I've got all my documentation from doctors and have tried
to comply with the law. Police should have better things to do than go
around looking for people who use marijuana for medical reasons."

Oddly enough, local law officers tend to agree.

"We're not hanging out at AIDS-treatment facilities seeing who's
walking out with a lid of pot," said Bill Baxter, a San Diego
Sheriff's Department lieutenant assigned to the county's narcotics
task force.

"And we're not kicking down doors like the Gestapo because we heard
grandma and grandpa are in the back tokin' a joint for their
arthritis. We've got better things to do."

But Baxter echoed other law officials in saying that Proposition 215
does not legalize marijuana. In fact, he said, from the police point
of view the law has had little practical impact these past two years.

"If you are stopped in the sheriff's jurisdiction and discovered to
have an ounce or less of marijuana, it will be confiscated, we will
write you a citation and that case will proceed just as if 215 hadn't
happened," Baxter said.

And if it's more than an ounce, misdemeanor or felony charges could be
filed, depending on the circumstances, he added.

Capt. Larry Moratto of the San Diego Police Department's narcotics
division agreed that the new law's impact has been
"negligible."

Those growing large amounts of marijuana remain at risk for felony
prosecution, he said, despite claims by people such as McWilliams that
the law entitles them to grow pot for their sick club members.

Baxter said the sheriff's department is "talking right now about more
definitive guidelines" regarding Proposition 215. He noted that
Lockyer's vow to make the medical marijuana law work will certainly
affect such guidelines.

"But I wouldn't look for any immediate clarification," Baxter said.
"There are so many complications no matter how you look at this issue,
regardless of whether you are a conservative or a liberal.

"In order to get something that is good and workable and equitably
enforced is still going to take awhile."