LOCAL CASE CHALLENGES MONTANA'S MEDICAL MARIJUANA ACT

An unfolding drug case in Ravalli County looks to stretch and define
the Medical Marijuana Act, testing the boundaries of the law and
setting precedence.

"I think we are treading on new ground," Defense attorney Julian Morales said.

In court Thursday, Robert L. Meharg entered innocent pleas to
criminal production or manufacturing of dangerous drugs and criminal
possession of dangerous drugs, for growing pot for his various
medical conditions.

Morales asked District Court Judge James Haynes for some direction
and guidance about certain provisions in the Medical Marijuana Act.

The act was voted into law in November 2004 and passed with 63
percent of the vote in Montana.

The law allows patients, with a doctor's recommendation, to legally
possess, use, and grow marijuana for medical use.

Montana residents with certain types of medical conditions, including
cancer, HIV/AIDS, multiple sclerosis, or certain other illnesses, can
apply for registry ID cards that will protect them from arrest and prosecution.

Because the user or caregiver has to be licensed, the patient and
caregiver fall under the office of quality assurance. Roy Kemp is the
Interim Administrator for Quality Assurance in the Department of
Public Health and Human Services.

A qualifying patient and that qualifying patient's caregiver may not
possess more than six marijuana plants and one ounce of usable
marijuana each, according to the Kemp.

As of Jan. 21, 169 people have registered for medical marijuana in 28
Montana counties, according to Kemp.

There are also 63 caregivers with a license to grow or assist with
the growing process for their patient. The patient has to name the
caregiver. That can range from a kindly neighbor to anyone who has
filled out the proper forms at DPHHS.

That number can be deceiving, according to Kemp said.

He called the law "innocuous" when it comes to defining caregivers.

"Mostly people are on a one-one relationship" with their caregiver.
However, there are some caregivers who are providing marijuana for
more than one person, according to Kemp.

The law further allows the caregiver to "charge a reasonable fee."
The figure was not determined, nor was where a person is suppose to
acquire the seeds, according to Morales.

In an interview Friday, Morales said he was "excited about defending
the case" and is already raising questions of the court.

"What is and what is not a legal amount a person can possess?"
Morales asked. "Different people have different amounts they would use."

He plans to ask the court to define what possession of the medical
marijuana card actually means. At the time of his arrest last month,
Meharg was not in possession of the required card. However, in court
Morales said Meharg has since received the card.

There is a lot of room open to interpretation and clarification,
according to Morales.

The new law also creates an affirmative defense that provides
immediate protection to patients. A patient who does not have a
registry ID card can still raise his or her medical use of marijuana.

"We will be testing the affirmative defense," Morales said.

Affirmative defense further outlines that a person need only have a
doctors opinion that the benefits of marijuana use outweigh the
health risks for the user.

"(The user) possesses marijuana only in an amount that is reasonably
necessary to ensure the uninterrupted availability of marijuana for
the purpose of alleviating the symptoms or effects of the medical
condition of the person identified," according to the statute.

Friday, he cited the "uninterrupted availability of marijuana"
outlined in the affirmative defense clause of the law as "the key."

The attorney expressed other concerns with the law as it is written.

"Statutes don't say how you are suppose to obtain this stuff," Morales said.

Meharg was further charged with use of property subject to criminal
forfeiture, his vehicle. This has become the primary concern for Morales.

In Court, Morales asked for a "compassionate release of the vehicle."

Ravalli County Deputy County Attorney Bill Fulbright told the court
the car was seized in the search warrant and "there is not a basis
for release at this point in time."

Morales indicated he is "exploring cruel and usual punishment"
because the County took possession of Meharg's only vehicle and he
has medical needs that require transportation

"He has a need for a car, this is a horrible situation." he said.

Haynes denied release of the car and made no rulings until legal
briefs could be filed and a special hearing scheduled.

A date wasn't set for the filing of legal documents, nor was a
hearing scheduled.