COUNTIES, CITIES SET THEIR OWN MARIJUANA LIMITS

It hasn't happened in Siskiyou County yet, but elected officials in
other California counties and cities have passed ordinances governing
how many marijuana plants and how much processed plant a legitimate
user of medical marijuana may possess at one time.

Such ordinances are provided for in Senate Bill 420, which also
mandates that counties create a medical marijuana identification card
system for the purposes of confirming that the holder is a legitimate
user. Siskiyou County has yet to take that step, as well.

Dilemmas abound when it comes to medical marijuana, which is the
subject of two conflicting state laws - Proposition 215, which made
it legal, and SB 420, which amended the original Prop. 215. Both of
those laws conflict with federal law, and some have questioned
whether SB 420 is constitutional because it is a bill passed by
legislators amending a proposition voted into law by the people.

In some places in California, such as San Diego, the county and
cities within the county have passed ordinances that allow different
possession amounts.

Siskiyou County uses SB 420's minimum floor of six mature plants and
eight ounces as its legal limit. Legitimate medical marijuana users
who possess more than that in the county are subject to arrest and
plant confiscation even if they have a doctor's recommendation for more.

Siskiyou County sheriffs will also make arrests if a legitimate user
has only six plants, if the plants appear to have the potential to
produce more than eight ounces of processed marijuana.

The City of San Diego, on the other hand, allows legitimate users to
have as many as 24 plants and one pound of marijuana, with that
amount doubling for caregivers. At the same time, the County of San
Diego holds to strict SB 420 limits of six plants and eight ounces.

Humboldt County, which borders southwestern Siskiyou County, allows
99 plants with a maximum of three pounds, while El Dorado County near
Sacramento has a complex system with differing amounts allowed
depending on whether the growing is done indoors or outdoors and the
growing season.

Siskiyou County Sheriff Rick Riggins said a medical marijuana
identification card system would be "very helpful" for his department.

"It would provide a written policy," Riggins said. "We could work out
the larger recommendations ahead of time. If we could get it
standardized, it would make it much easier."

Riggins said his department began the process a few years ago, but
the issue now rests with the Siskiyou County Health Department, which
is responsible for implementing the program.

Siskiyou County District Attorney Kirk Andrus also supports
identification cards.

"Absolutely," Andrus said. "Anything that helps clarify who is going
about it the right way would help. It would help to remove the shadow
of criminality."

Siskiyou County Public Health Director Terri Barber said the
department has been busy recently with staff hires and staff
reshuffling, but is now ready to tackle the issue of medical marijuana.

"It certainly is on our radar," Barber said. "It is one of the first
things we'll be talking about."

Barber said she will be looking into whether the identification card
will be verifying a doctor's recommendation for more than six plants
and eight ounces.

Andrus said there is "no question" that verifying a doctor's
recommendation for a larger amount of marijuana would help.

"The last thing we want to do is to have a doctor come into court and
testify that a person's medical needs require 10 or 15 plants,"
Andrus said. "We need to know that at the outset. The last thing we
want to do is put them through the criminal process."

On the issue of raising the number of plants and ounces above the SB
420 minimum, Andrus said, "My job is to enforce the law." But he
noted that raising the limit might help law enforcement.

"It could help in distinguishing between sick people and those
growing for profit," Andrus said. "Whatever the law is, I will enforce it."

Riggins said the Sheriff's Department is not only caught between
Proposition 215, which made medical marijuana legal, and SB 420,
which amended Prop. 215, but also has to take into consideration
federal laws that do not recognize any state laws making marijuana
legal as medication. Marijuana is illegal, period, under federal law.

"They put us right in the middle of this thing," Riggins said. "We
are sworn to uphold the state and the US constitutions."

Riggins said when the department encounters a garden with more than
six plants and a valid recommendation from a doctor, "We take the
totality of the case."

"Each one is on an individual basis," Riggins said. "I have no
problem with someone with an illness, but a 99 plant recommendation
isn't for personal use."

Riggins noted that in the case of a very large garden, the department
notifies the federal government.

"They want a lot of weight or large number of plants," Riggins said.
"We had five gardens go federal last year."

Siskiyou County supervisor LaVada Erickson said she is in favor of
the identification system, but would need more information before
voting to increase plant and ounce limits.

"A card identification system would be very useful," Erickson said.
"It would provide verification. People wouldn't be fearful of showing
the card. There needs to be a reasonable sense of it for us to raise
the limits. We wouldn't do it just because other counties do it. I
would need to see medical evidence that it is needed."

County supervisor Jim Cook said he supports the Sheriff's position
for the identification cards, but would take the medical marijuana
issue a step further.

"I actually think that if doctors can give prescriptions, then
perhaps the county should license growers and tax them appropriately,
rather than having a dozen plants here and all over the landscape,"
Cook said. "Then the county can roll the stuff and sell it to the
licensed pharmacies."

On the constitutional issue between Prop. 215 and SB 420 the State
Attorney General's office, led by Jerry Brown Jr., says it has no
official opinion on the matter.

"We have not issued an opinion," said Rodney Lillyquist, chief of the
Attorney General's legal opinion unit. "We have not been asked."
Lillyquist said that to his knowledge the issue has never been
litigated or come before a court.

Other legal aspects of medical marijuana, however, have come before
the courts and the following opinions have been given:

* A December 2006 ruling by the San Diego Superior Court rejected the
county's challenge and affirmed the state's Medical Marijuana Program
and the obligation of the county to implement the ID card program
mandated under SB 420;

* A California Supreme Court decision in People v. Wright reaffirmed
that SB 420 specifically provided an affirmative defense to the crime
of transporting marijuana to a qualified patient or a person with a
state identification card who transports or processes marijuana for
his or her own personal medical use. In addition, the Court found
that the amounts of marijuana described in SB 420 constitute a floor,
not a ceiling, on the amount of marijuana a qualified patient may possess; and

* The Third District Court of Appeal issued a positive decision in
People v. Urziceanu affirming the legality of collectives and
cooperatives, and held that SB 420 provides for a defense to
marijuana distribution for collectives and cooperatives.

In a June 2005 6-3 vote, however, the Supreme Court of the United
States affirmed the federal government's right to be the overriding
marijuana authority when they denied the right of citizens to grow
marijuana for personal use.

A 2001 Supreme Court ruling said that anyone distributing medical
marijuana could be prosecuted, despite claims their activity was a
medical activity.

The Hinchey-Rohrabacher Amendment, which proposed cutting off funding
for the federal government's prosecution of medical marijuana cases
in states that allow medical marijuana was recently defeated in the
House of Representatives.

The bill, sponsored by New York Democrat Maurice Hinchey and
California Republican Dana Rohrabacher, has failed each year since
its introduction in 2003 to pass the House.