JUDGE DENIES REQUEST TO DISMISS DRUG CHARGES

WAILUKU - Saying a marijuana-use requirement in the Religion of Jesus
Church appeared to have resulted from successful state prosecution
rather than religious belief, a judge has denied a request to dismiss
drug charges against the church's founder.

James Kimmel is awaiting a Sept. 10 trial in 2nd Circuit Court,
following the court ruling earlier this month.

The 72-year-old Kula resident has pleaded not guilty to felony
charges of second-degree commercial promotion of marijuana and
possessing drug paraphernalia.

The charges stemmed from police seizure of more than 2 pounds of
processed marijuana during a Feb. 22, 2006, search of a residence on
Ulumalu Place in Paia.

Also at the home were residents James A. Greathouse, 56, and his
wife, Liz O'Garvey, 52, who are awaiting trial after pleading not
guilty to first-degree commercial promotion of marijuana and
possessing drug paraphernalia. They were charged in connection with
137 marijuana plants that police reported finding at the home as
well.

When a police officer knocked on the door without a search warrant
that day, "I invited them to come in because they were there," Kimmel
testified during a court hearing in March.

He said the 2 pounds of marijuana were in plain view "because I had
nothing to hide, nothing to be afraid of."

"They smelled it," Kimmel said. "We were smoking when they came.
There was no denying it.

"I wanted to be honest and accommodate the officer so he could do
what he had to do. All I did was admit we had the pot on hand."

Kimmel said he and the others were using the marijuana as part of a
service for the Religion of Jesus Church, which he founded in 1969 in
Sonoma, Calif.

"It's been known as the marijuana church to many people because we
use cannabis as our sacrament," Kimmel said. "Our religion requires
it. It's the way we have personal communion with Jesus, with God."

During the July 19 hearing, Kimmel's lawyer, Michael Glenn of
Honolulu, argued that the charges against Kimmel should be dismissed
because applying the law to him violated his constitutional right to
freedom of religion.

"All he's asking is have respect and tolerance for his religious
belief," Glenn said.

He maintained Kimmel was being prosecuted "for his sacramental use of
a benign nontoxic herb that has, for thousands of years, been used in
the same way he's using it today."

But Deputy Prosecutor Timothy Tate called marijuana a "powerful
hallucinogenic."

"The most common reason for using marijuana is not medical. It's
recreational for the psychoactive feature," Tate said. "Marijuana is
the most widely abused psychoactive substance in the United States."

Referring to Kimmel's testimony that he "shared" marijuana with
others, Tate said: "This isn't a personal-use case. This is a case
where it becomes a commercial enterprise."

Tate said Kimmel and other witnesses described the church as having
no written doctrine and requiring no training to be a member.

"He can have faith, but it's hard to define what that faith is based
on the evidence in this case," Tate said.

The mandate requiring church members to use marijuana was put in
place in April 1997 after Dennis Shields, a Religion of Jesus Church
pastor, was found guilty of misdemeanor marijuana possession on the
Big Island in 1994. Shields had unsuccessfully argued that under the
U.S. Religious Freedom Restoration Act of 1993, he had a right to
possess the 7.9 ounces of marijuana that were found in his house.

"The state didn't seem to want to recognize the legitimacy of our
church unless we had a mandate," Kimmel said, referring to the
outcome of Shields' court case. "The court required a mandate."

In denying Kimmel's request to dismiss the charges against him, 2nd
Circuit Judge Joseph Cardoza noted that the Religion of Jesus Church
mandate followed the successful state prosecution.

"The mandate in this question was not one prompted by religious
belief, in this court's view, but rather by the outcome of a criminal
proceeding," Cardoza said.