RULING: POT ALLOWANCE SHOULD BE JURY'S CALL

Using State Possession Limits Called Improper

A state appeals court in San Diego has ruled that exactly how much
marijuana a medical-marijuana user can legally possess is a question
that jurors should decide, and using limits defined in state law is improper.

The unanimous ruling could mean a shift in how some medical-pot cases
are handled at trial, legal experts said. It also anticipates a
ruling expected soon from the state Supreme Court that deals with a
similar issue.

Nathaniel Archer of San Diego was appealing his 2007 convictions for
cultivating and possessing marijuana. Archer was a medical-marijuana
patient who was arrested by San Diego police with 98 pot plants in
his residence and an additional 1.72 pounds of dried marijuana.

He was convicted and sentenced to probation. The appeals court
reversed his convictions for possession of the drug, concluding that
it was wrong to use limits that the Legislature established in 2003
on the amount of marijuana a patient could have. That law amended the
Compassionate Use Act, the voter-approved initiative in 1996 that
allowed the medical use of marijuana. Under the state constitution,
the Legislature can't amend an initiative, unless doing so is
specifically allowed in the initiative's language that voters approve.

The Supreme Court heard arguments on that same issue Nov. 3 in an
unrelated case, and a ruling is expected soon. Most observers expect
the court to strike down the numerical limits as unconstitutional.

In Archer's case, the Attorney General's Office conceded that the
numerical limits were indeed unconstitutional, the opinion says. It
argued his possession conviction should stand because telling jurors
to use the numerical limits, as Superior Court Judge Kerry Wells did
at Archer's trial, was not prejudicial.

Justice Patricia Benke, who wrote the opinion, disagreed. Benke said
that with both sides conceding the numerical limits were
unconstitutional, the only standard that could be applied was whether
the amount of marijuana was "reasonably related" to a patient's medical needs.

Archer testified that he used about half a pound of marijuana per
month. It would be up to a jury to decide how much of the 1.7 pounds
he possessed - about a three-month supply, Benke calculated - was
reasonably related to his medical needs.

Russell Babcock, Archer's lawyer, said the decision will have an
impact on other cases.

"This has real ramifications," Babcock said. "It becomes a
case-by-case basis for juries of reasonableness."

Some patients use large amounts of the drug, because they use it in
baked products, lotions, oils or other applications.

Alex Kreit, a professor at the Thomas Jefferson School of Law and
head of San Diego's Medical Marijuana Task Force, said that the
decision is important because it means people will not be
automatically subject to prosecution if they exceed the limits.

Kreit said he did not think it would open a new line of argument for
people with large amounts of marijuana to avoid prosecution, or
conviction by juries. He said defendants still would have to convince
a jury that the amount of marijuana they had was appropriate.

"Folks would still have to make that argument, so I don't think there
is a lot of downside to the ruling," Kreit said.

The appellate court upheld Archer's conviction for illegally
cultivating the drug because he did not fit the definition of a
"primary caregiver" under the law. The court also agreed that he was
guilty of illegal cultivation because he was growing pot for at least
two other people.

Archer testified that he was growing marijuana for four others in
addition to himself, at least two of whom were also medical-marijuana
users. He refused to identify the other two when he testified at the
trial, the decision says.