STATE COURT RULING SHOOTS DOWN MEDICAL MARIJUANA RESTRICTIONS

A unanimous California Supreme Court on Thursday struck down a law
that sought to impose limits on the amount of marijuana a medical
patient can legally possess, essentially sending Humboldt County's
prosecution guidelines, and countless others throughout the state, up
in proverbial smoke.

The California high court ruled that state lawmakers overstepped
their bounds in 2003 when passing Senate Bill 420, which sought to
give law enforcement guidelines on when to make marijuana possession
arrests by mandating that each patient could have a maximum of eight
ounces of dried marijuana. The bill sought to add clarity to 1996's
voter-approved Proposition 215, which made it legal for patients to
possess and cultivate unspecified amounts of marijuana with a
doctor's recommendation.

The case, The People v. Patrick Kelly, adds considerably more gray to
an already murky legal area governing medicinal use of the drug, and
what constitutes legitimate personal medical consumption.

One thing is for sure, according to University of California Hastings
School of Law professor David Levine, the ruling will make it much
more difficult to prosecute medical marijuana cases.

"We end up going case by case, rather than having some sort of
guidelines," Levine said. "You're going to end up having to decide
this case by case. Given this particular defendant, was this
reasonable or not? And, it will be decided by a jury."

The ruling essentially states that only voters can change amendments,
like Proposition 215, that they've added to the state's Constitution
through the initiative process.

"The basic issue is just the hierarchy of law," Levine said, adding
that the court's ruling did not come as a surprise. "That's really
the core of it."

The Supreme Court's decision upholds a lower court ruling that tossed
out the conviction of Patrick Kelly, a Southern California man who
was arrested for possession of 12 ounces of dried marijuana and seven
plants. A "confidential informant" called Lakewood Police to report
Kelly's possession in October 2005.

Experts testified that the amount of marijuana Kelly had on hand
would last him just a few weeks for treatment of hepatitis C, chronic
back pain, and cirrhosis.

Humboldt County District Attorney Paul Gallegos said he's already
shared the court's ruling with the Humboldt County Board of
Supervisors, county counsel and the sheriff, and intends on talking
to other local law enforcement agencies about it. But, at first
blush, Gallegos said he thinks the ruling renders the county's
prosecution guidelines unlawful, as they place restrictions on the
amount of space patients can use to cultivate marijuana, the amount
patients can cultivate and the amount they can possess.

"We're back to no limits," Gallegos said. "We don't even have
threshold amounts we can throw in front of a jury."

Under Proposition 215, patients can use medical marijuana with a
doctor's recommendation, but there's no requirement that doctors
recommend a dosage. In fact because marijuana is still illegal
federally, the California Medical Association advises physicians to
avoid offering advice on how much marijuana a patient should use.

Gallegos said it will likely be very difficult for his office to make
determinations on whether the amount of marijuana possessed by
someone with a doctor's recommendation is in line with what their
doctor feels is necessary to treat their medical condition.

"You can arrest them all day long. The question is, can you prosecute
them?" Gallegos asked, adding that, in many cases, his office likely
won't know the answer until the patient's doctor is testifying at trial.

That is a very expensive process by which to prosecute cases,
Gallegos said, as it takes attorneys, a courtroom and jurors just to
determine whether a case is prosecutable.

Neal Sanders, a local attorney who handles medical marijuana cases,
had a similar take.

"The prosecutor can't come in and say, 'this person violated the law
because they had over eight ounces of marijuana,'" Sanders said. "The
prosecution now has to prove the defendant had more than what their
medical needs were. ... I think this is a boon to the defense for
people that have medical marijuana."

Gallegos said the ruling adds to marijuana's nebulous, quasi-illegal
state, which brings a host of complications -- both moral and criminal.

"When you say something is illegal, but make it so you can't enforce
it, you've turned the law, instead of a rule, into a suggestion,"
Gallegos said. "It really makes a lot of it unenforceable."

Allen St. Piere, spokesman for the National Organization for the
Reform of Marijuana Laws, said the court's ruling is a step in the
right direction.

"It's very positive," St. Piere said. "It's an acknowledgment that
the patient and the doctor relationship is sacrosanct and that the
state, federal and local governments should not get between a
physician and his or her patient."

But, the ban on SB 420 may be short-lived, according to Levine, as
the court simply ruled the state can't impose the guidelines without
first getting voter approval.

"What the Legislature will have to do is send it to the voters and
see what happens," Levine said. "There's no reason the Legislature
could not put this on the next ballot."

The county guidelines, Levine said, are another ball of wax, unless
the state acts first.

"At the county level, they just have to tear up those documents," he said.