R.I. JUDGE UPHOLDS GUN RIGHTS OF MEDICAL-POT GROWERS

PROVIDENCE - A recent Cranston case that tested the state's
medical-marijuana law raises a question about whether people with the
right to grow or possess marijuana to treat illnesses risk being
jailed for owning a gun, even if they own it lawfully.

The issue grew from Dean Derobbio's arrest in January 2010 for
allegedly conspiring with his roommate to possess marijuana with the
intent to sell it. He was also charged with carrying a dangerous
weapon while committing a crime of violence. The crime of violence
was growing marijuana, according to prosecutors and the police, and
the charge carries a mandatory three years in prison for a defendant
convicted of a first offense.

The police charged Derobbio's roommate, Joseph Joubert, with
conspiracy and possessing marijuana with the intent to deliver.

Derobbio held a patient card issued by the state Department of Health
to use marijuana to treat severe pain caused by ruptured disks in his
back, and he legally owned a 9mm pistol he kept in his nightstand,
according to his lawyer, Michael F. Campopiano. Joubert had a
primary-caregiver card, allowing him under the state's
medical-marijuana act passed by lawmakers in 2006 to grow marijuana
for Derobbio.

The law spells out how much marijuana a person can grow and possess,
but says nothing about guns. It, too, does not specify whether a
patient can have two caregivers growing marijuana for him, as Derobbio did.

Superior Court Judge Robert D. Krause seized upon those omissions in
tossing out the charges earlier in May.

"In my opinion," Krause said, "this is a poorly drafted statute, and
I don't think ... a defendant ought to be criminally liable for
inartful draftsmanship."

He rejected the state's argument that Derobbio could be pursued on
the gun charge even if the court found he had the right to possess
the marijuana and the pistol.

"If I were to find that there was nothing unlawful about what these
defendants had done by way of the medical-marijuana statute, and that
they were within the framework of the statute, and did not exceed the
amount of plants that are authorized, would you still pursue the
prosecution [of the gun charge]?" Krause asked Special Assistant
Attorney General Michael McCarthy at the May 4 hearing.

"With all due respect, your honor, I would," McCarthy said. He
explained that he would prosecute it under a law that says you cannot
legally grow marijuana while being in possession of a firearm.

"And, your honor, if you are cultivating marijuana, and if you are in
possession of a firearm, even though [the medical-marijuana act] has
stated you can grow marijuana, it is silent as to whether or not you
can possess a firearm," McCarthy said, according to a transcript of
the hearing.

Krause continued, "If you meet the requirements, if you have
possession of plants that are within the legal limit under this
marijuana act, and if you have a firearm at home, and you're not a
convicted felon, both of these are legal, yes?"

"Yes," McCarthy said.

"But, nonetheless, you claim it's criminal conduct." Krause said.

"As is being intoxicated in possession of a firearm," McCarthy said.

In the end, Krause found that the 33 mature plants being grown at the
101 Marlow St. house by Joubert and his mother, Marie Joubert, fell
within the legal limits of the medical-marijuana law since caregivers
can have 24 plants apiece.

The Jouberts were both caregivers to Derobbio, though the police said
Marie had never been in the house, and she could not identify which
plants were hers.

"The statute doesn't make it unlawful for two caregivers to have the
same patient, does it?" Krause said, adding "What a wonderfully
drafted statute we have. I don't know who drafted this thing."

Attorney General Peter F. Kilmartin's office plans to appeal Krause's
ruling with regard to the number of plants allowed at the house under
the law, according to Stacey P. Veroni, criminal division chief.
"Nobody can have collectively, or otherwise, more than 24 plants," Veroni said.

Asked whether McCarthy's position on Derobbio's gun charge indicated
the state's stance, Kilmartin's spokeswoman Amy Kempe said the
appellate division was reviewing the matter.

To Campopiano, one can infer the state's position from McCarthy's
comments. "It's what they said, and I find it shocking," he said.

"It appears that the state is trying to circumvent the legislation's
intent," he said. As written, the law protects qualified patients and
caregivers from arrest and criminal prosecution as long as they are
abiding by the medical-marijuana law. Today, there are just over
3,400 licensed patients in Rhode Island, and 2,200 licensed caregivers.

"Judge Krause is absolutely interpreting it right," he said.

Kilmartin, who voted in favor of the medical-marijuana bill as a
state lawmaker, plans to introduce legislation to tighten up the
medical-marijuana laws. Senior lawyers there were working on
modifications. "This collective-grow issue is an issue," Veroni has said.