THE CHAVEZ CASE

After many delays this fall,the medical marijuana court case of Marvin
Chavez is moving briskly.

It shouldn't be long before a jury has the opportunity to consider whether
Mr. Chavez was simply a clever marijuana seller, as the prosecution
contends, or a patient and caregiver who was trying in good faith to
implement Proposition 215 (now Section 11362.5 of the California Health and
Safety Code), whereby voters in 1996 made it legal for people with a
recommendation from licensed physicians to have access to marijuana.

On Tuesday, Orange County Superior Court Judge Frank F. Fasel, who had the
case in his court for several months, transferred it downstairs to Division
5. There Judge Kazuharu Makino heard defense arguments to disqualify Deputy
District Attorney Carl Armbrust from handling the case because of allegedly
inflammatory and biased statements he had made to the press about the case.
Judge Makino denied the motion, then transferred the case to West Court in
Westminster, where Judge Thomas J. Borris picked up the hot potato.

The case is being watched as a potential precedent-setter in implementation
of the controversial initiative.

Judge Borris on Tuesday familiarized himself with the case and took note of
the fact that the prosecution had attempted to prevent the use of Section
11362.5 as a defense against the marijuana-selling charges and that Mr.
Chavez's attorneys had tried to allow the new law to be used as a defense.

This is a key question to be settled - if jurors are allowed to hear about
Prop. 215, its intent and its adoption as part of the state health code, Mr.
Chavez has a better chance of prevailing than if jurors only hear about the
sales transaction itself.

Selling marijuana is illegal under federal law.

On Wednesday afternoon, Judge Borris dealt with whether he would allow the
defense attorneys to claim a Prop. 215 defense.

He explained how he interpreted the statute and the two appellate decisions
that have dealt with certain aspects of how the new law is to be handled in
practice.

Then he heard arguments on the point from the lawyers.

A decision will be made after he hears from a witness, the person on whose
behalf Mr. Chavez claims he was acting as caregiver.

Other developments could also influence the case.

Even if Judge Borris allows a Prop. 215 defense, he is likely to limit its
use among the four types of charges in the Chavez case.

This case is important because however it is decided it should offer firmer
guidelines as to how patients who under the law have the right to use
marijuana can get it legally.

It is a case we intend to follow closely, given the implications. After two
years this law has still not been properly implemented. It is long past time
to put it into practice.

Checked-by: Don Beck