THE COURT AND PROP. 215

An Orange County Superior Court Judge ruled Friday that Marvin Chavez's
attorneys may not use Proposition 215 as part of Mr. Chavez's defence
against 10 counts of selling marijuana.

Mr. Chavez is the director of the Orange County Patient, Doctor, Nurse
Support Group, which has furnished marijuana to patients with a doctor's
recommendation since the November 1996 passage of Prop. 215, which gives
such patients and their primary caregivers a right to possess, use and grow
marijuana.

Judge Frank F. Fasel could have approved the use of Prop. 215 as a defense,
but his ruling is not an unreasonable one, given the status of the medical
marijuana law, which is still far from being sorted out.

The ruling will make the job of Mr. Chavez's attorneys more difficult; the
case now will be more narrowly focused on the question of whether or not he
sold marijuana - not the purpose of the sale.

There is no legal distinction between Mr. Chavez and a run-of-the-mill dope
dealer, according to the District Attorney's Office, with Deputy D.A. Carl
Armbrust taking the point position. Mr. Chavez stands accused of selling
marijuana, have provided marijuana to an undercover officer who had a note
from a fictitious doctor. If convicted, he could be sentenced to prison.

Mr. Chavez could have taken an easier way out - he several days ago turned
down a plea-bargain deal whereby he would have gotten no additional jail
time and probation if he pled guilty. He opted for a trial; he doesn't
believe he's guilty.

Judge Fasel's ruling highlights a common problem in understanding and
explaining how legal cases are sometimes decided - the difference between
what would seem to be common sense and the law, which has evolved a complex
system of determining what evidence may be presented under various
circumstances, and is sometimes ambiguous or imperfectly drafted.

As a matter of common sense, Marvin Chavez has been trying conscientiously
to be part of the solution to implementing Prop. 215 - now Sec. 11362.5 of
the California health and Safety Code - for almost two years. He formed his
group shortly after the initiative passed and developed procedures to ensure
that his group is not used to furnish marijuana to people who do not have a
legitimate medical reason to use it.

The members and most of the staff are patients themselves. The club keeps
copies of doctors' notes and receipts for donations. The authorities knew
that the way to get Mr. Chavez to furnish marijuana to an undercover officer
was to show him what appeared to be a legitimate note from a doctor and a
persuasive story of medical distress. Most drug dealers couldn't care less
about such niceties; they just want the cash.

However, while Prop. 215 provided that a certified medical need would
provide that a certified medical need would provide a patient a defense
against existing laws prohibiting possession, use and cultivation of
marijuana and called upon the government to set up a "safe and affordable"
distribution system, the initiative did not specifically provide a defense
against charges of selling or transporting marijuana. And it defined
"primary caregiver" in a way that does not specifically and unequivocally
include operations like that of Marvin Chavez in that definition.

You could take those facts and argue, as the city council in Oakland has,
that the intent of Prop. 215 was to create a small and controlled "white
market" for medical marijuana patients. The Oakland council last week passed
an ordinance that includes the local Oakland Cannabis Club as part of the
city-authorized distribution system and takes the additional step of
declaring the club's officers to be official agents of the city in an effort
to immunize them from state and federal prosecution. It is likely to be
tested in court.

Or you could take the same facts and argue that the initiative is so deficie
nt that it can't be implemented without legislative action refining it
(perhaps at the state, city or local level) and that the court's job is not
to do that legislative job by declaring that what Mr. Chavez has done is
proper implementation. If that means rulings that highlight the
contradictions and shortcomings of the initiative itself, so be it.

Even given those assumptions, however, you could argue that the jury in Mr.
Chavez's specific case deserves to know that he was attempting - even if
imperfectly and perhaps even illegally - to implement Prop. 215. Judge Fasel
didn't so rule.

As the trial unfolds, we hope some local governments consider writing
ordinances - perhaps like Oakland's, perhaps a less assertive version akin
to Arcata's - that would provide guidelines and procedures for the orderly
and legal implementation of the voters' wishes as expressed in the passage
of Prop. 215.

Checked-by: "Don Beck"