EDITORIAL:MEDICAL MISHMASH

A Santa Ana man, David Lee Herrick,was convicted of felony marijuana sales
last week even though he distributed it to people who had recommendations
from doctors and believed he was providing the marijuana pursuant to Prop.
215, passed by the voters in 1996.

The jury asked the judge, William R. Froeberg, about how Prop. 215 should
apply, but Judge Froeberg ruled that Mr. Herrick's attorney couldn't use the
initiative as a defense. The judge's argument is that while the initiative,
now Health and Safety Code Section 11362.5, provides a defense against
possession and cultivation charges, it does not offer a defense against the
charge of selling marijuana, which is still illegal under federal law but
seems to be open to question under state law.

Deputy District Attorney Carl Armbrust says the verdict in Orange County
Superior Court in Santa Ana sends a simple message: it is illegal to
exchange marijuana for money in California, whether the person receiving the
marijuana has a prescription or not.

That sounds like an attractive argument for those law enforcement officials
and others who still want to believe that the medical marijuana inititiative
was a big mistake that can't work in practice. Fortunately for sufferers who
seek the drug and for other supporters, the legal situation in California is
not quite that cut-and-dried. In fact, there is recent legal precedent that,
if used by the judge in the Herrick case, could well have led him to a
different opinion and, for Mr. Herrick, a retired San Bernardino County
sheriff's deputy, a different outcome.

There have been two cases decided by California appeals courts since Section
11362.5 was enacted that may have bearing. In People v. Trippett (September
1997), the Court of Appeal for the First District ruled that Prop. 215 could
be used as part of the defense in an appeal of a person convicted of
marijuana possession (the defendant had two pounds in her car) before the
initiative passed in November 1996 and the case should be remanded for a new
trial.

The issue was Section 11360, still in effect, which makes it a felony to
sell, transport or import marijuana. The court ruled that "as a general
matter, Prop. 215 does not exempt the transportation of marijuana allegedly
used or to be used for medical purposes under section 11360. However, and as
even the attorney general concedes, practical realities dictate that there
be some leeway in applying section 11360 in cases where a Prop. 215 defense
is asserted to companion charges. The results might otherwise be absurd."

While transportation was not central to the Herrick case, this ruling
demonstrates the leeway with which the initiative is being interpreted.

The other case, which bears more directly, is People v. Peron, in which the
Court of Appeal, First District, ruled in December that the Cannabis Buyers
Club in San Francisco did not qualify as a "primary caregiver" and would
have to cease the kind of operations in which it was engaged. In making the
ruling, however, the court noted there were difficult questions involved and
tried to clarify some of them.

"Although the sale and distribution of marijuana remain as criminal offenses
under section 11360, bona fide primary caregivers for section 11362.5
patients should not be precluded from receiving bona fide reimbursement for
their actual expense of cultivating and furnishing marijuana for the
patient's approved medical treatment." A few paragraphs later, the court
says: "Assuming responsibility for housing, health or safety does not
preclude the caregiver from charging the patient for those services. A
primary caregiver who consistently grows and supplies physician-approved or
prescribed medicinal marijuana for a Section 11362.5 patient is serving a
health need of the patient, and may seek reimbursement for such services."

In a concurring opinion, Justice Kline notes: "The 'right to obtain'
marijuana is, of course, meaningless if it cannot legally be satisfied. The
majority does not say qualified users may not obtain marijuana but it does
say no one has the right to sell or furnish it to them, which is the
functional equivalent. Obtaining marijuana from another may, however, be the
only practical way to secure it for many seriously ill Californians who have
a right to obtain and use the substance, because they and their primary
caregivers may as a practical matter be unable to cultivate the plant or
await harvest."

Justice kline refrained from issuing hard-and fast guidelines because "local
governments in California are now exploring ways in which to responsibly
implement the new law" and the courts should let them.

What California needs, in short, is local officials, prosecutors and judges
with a desire to implement the will of the people in a responsible and sober
fashion, rather than a desire to thwart the will of the people or to prove
that the will of the people was foolish.

Mr. Herrick's attorney, Sharon Petrosino, plans to appeal immediately after
sentencing, set for June 26.

Checked-by: "Rolf Ernst"