COURT OF APPEALS WON'T RULE ON LEGALITY OF POT ORDER TO DCSO

The Oregon Court of Appeals has dismissed the Douglas County
Sheriff's Office challenge of an order forcing the agency to provide
marijuana seized in a drug raid to three patients prescribed medical
marijuana.

Three years ago, police raided the Dixonville home of Dwight
Ehrensing, a designated caregiver and grower for several people who
are cardholders under the Oregon Medical Marijuana Act.

They seized more than 120 pounds of processed marijuana, some of
which was processed for sale. They also seized 80 pounds of marijuana
butter, produced by slow cooking marijuana leaves with butter or
margarine and then straining out the leafy material. The butter,
which contains high levels of THC, the active ingredient in
marijuana, is then used as a food spread.

The raid also yielded 45 large marijuana plants, 10 grams of hashish,
psilocybin mushrooms and more than $7,000 in cash.

Ehrensing, 64, a medical marijuana cardholder himself, was charged
with manufacture, delivery and possession of a controlled substance.
He was accused of selling pot to others who weren't medical marijuana
cardholders.

Under the law, a caregiver can have six mature plants per person and
18 immature plants and can grow for four people. The seized amount
far exceeded that, authorities alleged.

Upon motion by the defendant, Douglas County Circuit Judge William
Lasswell ordered then-Sheriff Chris Brown to return 8 ounces each of
the marijuana to the three other patients for whom Ehrensing was
growing marijuana. Brown asked for reconsideration of the order
after arguing the county could be in violation of federal laws
prohibiting delivery of a controlled substance.

Lasswell rejected that argument, saying he had empathy for the
patients and the pain they were enduring. None of the three patients
was accused of a crime.

On appeal, the county and the Oregon Department of Justice argued
Lasswell erred when he ordered the sheriff to release some of the
seized marijuana. Although that marijuana was presumably used up, the
state argued its appeal was not moot because the county still has
the rest of the seized pot that Ehrensing contended should be released.

The three-member panel of the Court of Appeals disagreed.

"Here, in light of the state's concession at oral argument that it
cannot retrieve the released marijuana, any determination about the
lawfulness of the trial court's order would have no practical effect
on the parties," Judge Robert Wollheim wrote in the 17-page decision
issued Wednesday.

The court noted that although Ehrensing could have asked that more of
the seized marijuana be distributed, no request had been made. As a
result, there weren't any grounds for a ruling, the panel concluded.

"Any dispute over the marijuana still being held by the sheriff would
therefore be based on future events of a hypothetical nature. As
such, the issue that the state raises as to the marijuana that is
still in the sheriff's possession simply is not ripe at this time,"
Wollheim wrote.

In a dissent, Judge Walter Edmonds said that by concluding the
question was moot, the Court of Appeals effectively prevented the
state from appealing.

"The majority's reasoning effectively denies the state a statutory
right to appeal because it obeyed the trial court's order," Edmonds
wrote.

Ehrensing is set to go to trial on the drug charges Jan. 27. A
12-member jury will hear the case in Judge Joan Seitz's courtroom.
She was assigned the case after Lasswell retired earlier this year
and went on senior status.

Ehrensing has filed a motion to have the charges dismissed for lack
of a speedy trial. A hearing on that motion is scheduled for Dec. 29.