COUNTY JUDGE DROPS MEDICAL MARIJUANA CASE

A judge dismissed a case Friday filed on behalf of a medical marijuana
grower who claimed the Douglas County District Attorney's Office was
improperly applying the Oregon Medical Marijuana Act.

Judge Thomas Kolberg ruled that the case, John Doe v. Jack L. Banta, et al,
was a thinly veiled attempt to get him to interpret the act in a manner
favorable to Doe so he could avoid prosecution.

Portland attorney Leland R. Berger told the court that his client -- whom
he declined to identify to protect him from prosecution -- had called the
Douglas County Sheriff's Office to report his medical marijuana plants had
been stolen.

Berger said a deputy warned the man that he might be opening himself up to
prosecution because he had been in possession of more plants than the
district attorney's office interprets the law to allow.

The office interprets OMMA to mean a primary caregiver is subject to the
same restrictions for marijuana possession as medical marijuana patients --
which is four immature plants, three mature plants, and one ounce of usable
marijuana per mature plant -- even if the caregiver is approved to grow for
more than one person, said Deputy District Attorney Jeff Sweet.

If a person is away from the approved growth site, he or she is allowed to
have only one ounce of usable marijuana.

Kolberg was skeptical that a deputy would advise people against reporting
crimes simply because they might be opening themselves up to prosecution.

"I can't imagine a law enforcement officer doing that in this county," he
told Berger.

Kolberg said circuit court judges aren't allowed to give advisory opinions
on points of law in "hypothetical" situations. If Berger and his client
wanted to challenge the law, they would have to do so in defending his
client from any criminal charges he might incur from the district
attorney's office.

Otherwise, he said, people could rush to court and ask a judge to give a
ruling on a point of law before they engaged in a potentially criminal act
to protect themselves from prosecution.

"That's just not allowed," Kolberg said.

"Because he believes the district attorney's interpretation is incorrect,
he asks the court to render an opinion on how the Medical Marijuana Law
should be interpreted," Kolberg said in his ruling. "He is hopeful the
court's opinion will mirror his own and will then, in some manner, bind the
district attorney in future criminal cases and, specifically, bar him from
prosecuting Petitioner."

Kolberg said in Oregon all civil actions must be prosecuted in the names of
the interested parties. He also said he cannot make a ruling on a scenario
that is likely to take place, but has not actually happened, such as the
potential prosecution of John Doe.

"No one is preventing Petitioner from reporting the alleged burglary. Until
he does so, what might happen is a matter of speculation only," Kolberg
wrote. "A controversy to be justiciable must be immediate and real in order
to warrant the court's interpretation."

The district attorney's office was represented in the case by Oregon
Assistant Attorney General Andrew Logerwell.