DILLON MAN'S DEATH PUTS MEDICAL POT LAW BACK IN SPOTLIGHT

HELENA - Summer Sutton-Day said all her husband, Scott Day, wanted in
life was to live with as little pain as possible while helping others
find a way to cope with their suffering.

Scott was diagnosed as a child with mucopolysaccharidosis, a rare
congenital disease caused by the lack of certain enzymes which, over
the course of his life, spawned diverse and severe physical pain and
other serious health problems.

When he was diagnosed, doctors said he probably wouldn't live to see
his twenties.

He was 34 when he died Tuesday at his home in Dillon.

Friends and family say medical marijuana was a key reason for Scott's
surprising longevity.

They say the tragedy is he spent the final six months of his life
facing criminal prosecution for growing the medicine that kept him alive.

"I'll tell you what; we're all going to die. Scott was going to die
sooner than most of us," said Scott's mother, Linda Day of Sheridan.
"I'm not saying that this caused his death. I am going to say his
death was probably a little premature, because you can't imagine what
he's gone through."

Day had used marijuana to treat the symptoms of his disease for the
last 14 years.

"He had pain in all of his body, all over, at all times," Sutton-Day
said. "There was nothing that could take away the pain, but with
medical marijuana he could control it. I think that is the only
reason his life was extended."

In February, federal agents and local police raided Day's Dillon
home, seizing 96 marijuana plants from the garden he had spent more
than a decade meticulously caring for.

The Days were charged with production, possession and intent to
distribute dangerous drugs, all felonies.

Neither of the Days were state-registered medical marijuana patients
until after the February bust.

Sutton-Day said Scott's health dropped off precipitously following
the raid because he could no longer find adequate supplies of
high-quality marijuana, and his constant fear of jail time lead to
bouts of depression and anxiety that exacerbated his illness.

"He was stressing out so bad about his health because there was
nothing that we could do to replace what they had taken away," Sutton-Day said.

Those close to Day say he is a prime example of the patient voters
had in mind when they overwhelmingly passed a ballot initiative in
2004 legalizing the use of medical marijuana. Supporters of medical
marijuana say Day's case demonstrates the serious gaps in the law and
in law enforcement officials' appreciation for the legitimate medical
use of marijuana.

Fear of Prosecution

When voters passed the Medical Marijuana Act in 2004 by the largest
margin in the country, Montana became the 11th state in the nation to
legalize its medicinal use.

Tom Daubert is the founder and director of Patients and Families
United, a support group for patients who use medical marijuana and
other patients who suffer from pain, whether they use medical marijuana or not.

He said many sufferers of chronic pain and serious illnesses were
overjoyed when they were finally able to find legal relief in a drug
many had used illicitly for years.

But marijuana use is still outlawed by the federal government,
leaving Montana's medical marijuana patients in limbo between state
and federal authorities.

Besides the legal gray area, Daubert said, Montana's law limits
patients to possession of six plants, or one ounce, and that's not
adequate for patients like Day.

"Scott would never have been able to meet his needs for a steady
supply for medicine under our six-plants, one-ounce limit," Daubert
said. "Like many patients, he had multiple conditions and systems,
each one of which responded to a different strain of marijuana. Day's
mother said anyone who knew Scott knew he wasn't a drug abuser or
dealer. She said all her son wanted was to cope with his symptoms so
that he could go on living.

"No one who ever knew him would believe he sold pot," Linda Day said.
"For one thing, they are as poor as church mice."

Sutton-Day said both she and Scott had the necessary doctor's
recommendation to use medical marijuana, but they declined to apply
for state "registry identification card" for fear of being put on a list.

She said Scott was a genius when it came to growing different strains
of marijuana to treat different symptoms of his disease, and his
doctor advised him to "keep doing what they are doing" without registering.

"He was fearful of the government and fearful of prosecution,"
Sutton-Day said of Scott's longtime physician. "He told us
specifically that a sheriff would come to our house. He was fearful
for Scott's safety. He didn't want to put us on a list."

Contrary to popular belief, law enforcement officials are not barred
from finding out who is on the state medical marijuana registry, said
Roy Kemp, deputy administrator of the Department of Health and Human
Services' Quality Assurance Division.

Kemp and one other person at QAD are the only two people in the state
with access to the state patient and caregiver registry, but they
will verify a patient's registration status if asked by law
enforcement. "They have to give me a name, and I'll verify the name,"
Kemp said. "I will verify 'yes' or 'no' on the name."

That's why some patients are fearful of registering, said Eric
Billings of Lewistown.

Billings, a longtime sufferer of HIV/AIDS and board member for
Patients and Families United, has been using medical marijuana since
1996. He said medical marijuana allows him to use fewer and fewer
painkillers and other drugs to manage the side effects of the
anti-viral cocktail he takes to fend off AIDS. He's also a caregiver
for five other medical marijuana patients, which means he grows and
supplies marijuana to patients who can't grow it themselves.

He said that in the last six months, he's endured numerous visits
from police and had a significant number of his plants confiscated in
what he believes were unlawful raids.

"I've been investigated by police. I have had them come to my house
and threaten me that if I didn't let them search my house the county
attorney would get a warrant because he knew I was a registered
patient," Billings said.

Nearly a year ago, Missoula medical marijuana patient Robin Prosser
committed suicide less than a year after drug enforcement officers
confiscated a shipment of her medical marijuana in-transit from her
state-approved caregiver. Prosser, perhaps Montana's most outspoken
advocate for medical marijuana use, said caregivers around the state
were fearful of providing her medicine after that.

"She killed herself because she couldn't endure the agony and the
pain and the sense of hopelessness," Daubert said. "Our love for
Robin Prosser and Scott Day are going to drive us to continue
fighting for patient's rights and to improve the law to make it more
workable for suffering patients."

Needed Reform

Beaverhead County prosecutor Jed Fitch said Summer and Scott Day's
case has caused him "serious heartburn."

He said he agrees that if anyone in the state deserves protection
under Montana's medical marijuana law, it's patients like Scott Day.

But the Days never applied to the state marijuana registry, Fitch
said, and they had far more plants than allowed by the law.

"I liken it to an elk tag," Fitch said. "If you decide you want to go
elk hunting, you have to get a license and a tag before you go out
there and shoot an elk. If you don't you're in violation of the law.
If you shoot more than one elk you're in violation of the law. The
analogy is you should get the (medical marijuana registry) card
before you have marijuana in your possession."

Fitch, who inherited the Days' case in May when he was appointed to
take over for former county attorney Marvin McCann, said he never met
or saw Scott Day until a hearing in August.

"I knew he had severe medical conditions, but I didn't see him,"
Fitch said. "You can hear that, but until you see him ... there's no
doubt when you see him he's got severe problems. That increased the
heartburn level."

Fitch said he wrestled with the facts in the case, but the fact
remained that the Days broke the law.

"In my opinion, he wasn't covered by the protections in the law
because he wasn't a registered user," Fitch said. "It's my opinion
that if someone had a registry card, I don't think the arrests would
have been made."

Fitch said he is not sure if he would have handled the case any
differently if he was in McCann's position at the time of the
original raid on the Days' home, but he said he agrees that the law
needs to be reformed in order to prevent the prosecution of citizens like Day.

"What I'm concerned about is that on one side you have people who
want full decriminalization of marijuana," Fitch said. "They are
allowed to have that position, but when people see a 350-plant
operation in Livingston, I don't think that's what Montana citizens
had in mind when they passed the medical marijuana act. I'm afraid
that Montana citizens are going to say, 'This isn't what we had in
mind,' and they're going to throw the whole thing out."

Fitch said he hasn't decided if he will continue to prosecute Summer
Sutton-Day.

Linda Day said it's frustrating for patients and their families who
are caught up in the political and legal battle over marijuana when
all they want is to be left alone to treat their pain and suffering.

"We aren't the kind of people who abuse anything. We don't believe in
abuse of alcohol or prescription drugs or marijuana or medical
marijuana," Linda Day said. "But this is so different. What's so sad
to me is that it can help so many people if it's used correctly."

Scott's mom said the state needs to do more work on the medical
marijuana law so that patients like her son can get the treatment
they need without facing fear of prosecution and jail time.

"The policy that they have now is inadequate," she said. "They need
to find a way that they can make this available to people who truly
need it. And they need to set up something so this doesn't happen to people."

In the end, Scott's mom hopes something good eventually comes from his death.

"He would have been proud to be a poster child for this movement,
because he did know how much it helped people," she said.