MEDICAL MARIJUANA GROUP SEEKS TO CLARIFY POT TRANSFER RULES

Declaratory judgment sought in Flathead County District
Court

A complaint filed in Flathead County District Court looks to clarify
the state law on medical marijuana transfers between registered
caregivers, which a medical marijuana group says is an integral part
of the business.

The core issue is whether a judge would consider marijuana
transactions between caregivers legal under Montana's Medical
Marijuana Act. Attorneys for the plaintiffs contend that the transfers
are indeed legal, and that caregivers should not be prosecuted for
completing them.

Attorneys Timothy Baldwin and Chris Lindsey filed the motion on behalf
of the Montana Medical Growers Association (MMGA), as well as three
anonymous men and two anonymous women.

Flathead County Attorney Ed Corrigan is listed as the defendant.
Administrators at the county attorney's office said they would respond
to the complaint after their civil attorneys examined it.

The complaint seeks declaratory judgment to determine that a medical
marijuana caregiver can legally "deliver, transport or transfer
marijuana and its paraphernalia to another caregiver" either
themselves or through an agent.

It also looks to clarify that a caregiver can legally cultivate and
manufacture marijuana as an agent or a contractor for another caregiver.

The attorneys asserted in their complaint that anonymity is necessary
for their clients because "otherwise they would be forced to
self-incriminate themselves based on statements made" in the filing.

However, the complaint references two active cases in Flathead County
District Court, in which Lief Erickson and Robin Ruiz are being
charged with criminal possession of drugs with intent to distribute.

According to court documents, Erickson and Ruiz were on their way from
Kalispell to Great Falls, where they were stopped by an agent from the
Northwest Drug Task Force.

The agent found three pounds of marijuana and THC-infused honey that
would allegedly be sold to a buyer in Great Falls, records state.

In an interview, Lindsey said part of the defense for Erickson and
Ruiz will be that they were participating in the medical marijuana
program, and he would like a judge to make a decision clarifying the
caregiver-to-caregiver rules.

Lindsey, who is also seeking declaratory judgment on marijuana
transfer in Missoula County, said the Flathead cases presented an
opportunity for legal standing to clarify the transfer rules.

The MMGA has asked the state attorney general's office for an opinion
on caregiver-to-caregiver transactions, Lindsey said, but so far there
has been no comment. This allows the state to remain out of disputes
on the issue, he said.

But now that the Flathead County Attorney's office has filed criminal
charges against Erickson and Ruiz, Lindsey said the group has the
opportunity to go to a judge and make an argument.

He added that he thinks these types of transactions have not been
widely prosecuted in the past because law enforcement was waiting to
see what the Legislature would do about medical marijuana
regulations.

"Folks in law enforcement have decided enough is enough," Lindsey
said. "It's not up to law enforcement to interpret law, that's what
judges are for."

Jim Gingery, executive director of the MMGA, said the confusion
regarding the legality of caregiver-to-caregiver marijuana exchanges
is cause for concern in the medical marijuana community.

"If there's no opportunity for a caregiver or patient to acquire
medical cannabis, where are they to obtain the first seed?" Gingery
said. "We know the plant is God given, but not many of us have a
direct connection for him to drop a seed in our backyard."

Budding businesses should be able to start their crop with seeds or
clone plants from other caregivers that they trust, Gingery said.

"I'm calling it the 'seed defense,'" Gingery said. "How in the world
can you get started if you don't have the first seed? And where do you
get the first seed unless you acquire it?"

It's an issue MMGA discussed with lawmakers, Gingery said, but so far
no regulatory action has come through the Legislature addressing their
concerns.

Clarifying caregiver-to-caregiver transactions could mean putting
documentation mandates in place, he said, such as creating a paper
trail of recorded transfers and sales.

As an attorney in the case, Baldwin said declaratory judgment could
also help clear up the state-sanctioned rights of Montana medical
marijuana providers if federal agents conduct more raids on businesses.

In 2009, the U.S. attorney general's office issued a memo advising
U.S. attorneys in states with medical marijuana laws to not focus
resources "on individuals whose actions are in clear and unambiguous
compliance with existing state laws providing for the medical use of
marijuana."

If the Montana's caregiver transactions are specifically declared
legal, the caregivers could have more protection from federal
prosecution, Baldwin said.

"It's not just about the state law, it's about how the federal
government is treating the citizens in Montana," Baldwin said.