COURT UPHOLDS DISMISSAL OF MARIJUANA CULTIVATION CHARGE

A preliminary hearing magistrate properly dismissed a marijuana
cultivation charge based on evidence, including expert testimony, that
the defendant was using the drug for personal medical purposes, the
Third District Court of Appeal ruled yesterday.

In upholding the dismissal of charges against Timothy Arbacauskas of
Sacramento, the court rejected the attorney general's contention that
the defendant's possession of 17 marijuana plants was sufficient to
create a reasonable suspicion that he intended to sell some of the
final product.

The case stems from a 2002 inspection of the defendant's premises by a
narcotics detective who said he witnessed Arbacauskas spraying his
plants, which were growing in the backyard. The backyard fence, the
detective noted, had a sign saying the marijuana garden was authorized
by Proposition 215, the medical marijuana initiative.

The detective went inside the residence, seizing a number of items,
including a scale, a cell phone, and several baggies containing
marijuana residue and inscribed with the symbol of an Oakland cannabis
club. Arbacauskas showed the detective a document signed by a
physician recommending marijuana for pain relief.

The detective seized the plants. He testified at the preliminary
hearing that each was likely to produce a pound of usable marijuana,
and that in his opinion-based on the number and health of the plants,
the scale, the plastic baggies, and the cell phone-the defendant was
cultivating the plants for sale.

The defendant testified that he used marijuana to relieve back pain he
had been suffering from for several years, dating back to his work as
a firefighter. He acknowledged that he had been placed on probation in
1999 for selling, giving away, or using marijuana without medical
authorization.

He stopped smoking after that, he explained, but had an auto accident
in 2001 and started again because the pain as worse than before. He
saw multiple doctors and tried multiple prescription painkillers, but
they were ineffective and he did not like the side effects, he said,
leading him to obtain an authorization to use marijuana.

The magistrate found that he was entitled to the immunity of
Proposition 215. The Superior Court judge and the Court of Appeal agreed.

Justice Coleman Blease cited the magistrate's findings of fact, based
on the defendant's testimony and that of an expert, who cited the lack
of indicia of sale, the defendant's innocent behavior when a detective
appeared at his residence, Arbacauskas' written medical authorization
to use marijuana, the size of his garden, which the witness said would
normally yield a quantity of medical marijuana consistent with medical
use, and the difficulty in predicting and calculating the yield of
useable medical marijuana at the time of planting.

He wrote:

"In sum, the evidence showed that defendant had the requisite medical
authorization and several back injuries that caused him severe pain,
which was impervious to traditional pain medications. He credibly
denied cultivating marijuana to sell and his prior efforts at growing
marijuana only yielded two to three ounces of marijuana per plant.
This history, in light of the difficulty of predicting and calculating
the yield of useable marijuana, and the vagaries of back pain,
constitute substantial evidence that defendant was cultivating
marijuana for personal medical use rather than to sell it."

The case is People v. Arbacauskas, C044110.