MEDICAL MARIJUANA: WORKING TO SMOKE OUT ABUSERS

State System Works for Most of 350 Participants, but Some Find
Loopholes

CARSON CITY - Three years ago, Pierre Werner went to prison in New
Jersey after being convicted of conspiring to distribute 170 pounds of
marijuana.

He moved to Southern Nevada and secured a registration card from the
state Department of Agriculture that legally permits him to grow as
many as seven marijuana plants.

"I'm bipolar," said Werner, a congenial man who admits he is stoned
most of the time. "I'm mental. I'm crazy. I have an illness, and
cannabis has always been my medicine."

Don Henderson, the state agriculture director, doesn't think so. His
agency, directed by the Legislature to run the medical marijuana
program, revoked Werner's license Feb. 25.

The revocation came after Werner, 32, was arrested by U.S. marshals
and charged with attempting to distribute marijuana. Police raided his
Las Vegas home Jan. 17 and confiscated 27 marijuana plants. Werner
said prosecutors have offered him a deal to plead guilty to a
misdemeanor and pay a $500 fine.

But before taking the deal, he wants his plants and growing equipment
back. The state's medical marijuana program has 350 participants. As
far as officials know, Werner is the only participant to cause concern
since the state program began Oct. 1, 2001.

"For the most part, we don't see abuses going on," Las Vegas police
Lt. Stan Olsen said. "Are there going to be people who abuse it?
Absolutely yes. He is the only one I am aware of with whom we have had
problems."

The arrests haven't stopped Werner. He says he still grows marijuana
and sells or gives it to about 20 other medical marijuana patients
through his enterprise, Primary Caregivers and Consultants. For a fee,
he connects people with health problems to doctors willing to
recommend that they use marijuana.

Werner's criminal history escaped detection because the state-required
fingerprint check only checked records in Western states, according to
Jennifer Bartlett, manager of the Nevada medical marijuana program.

With soon-to-be implemented registration fees, the Agriculture
Department will conduct national checks through FBI databases and
detect people like Werner before granting them registration cards,
Henderson said.

"I believe my criminal history has nothing to do with my health,"
responds Werner, who spent eight months in a New Jersey prison. "I
need medical marijuana to be healthy."

Gina Session, the deputy attorney general who advises the Agriculture
Department, contends Werner "obviously lied on his application" about
the New Jersey arrest or he never would have been granted a Nevada
license. Werner points out he was convicted of a "conspiracy," not the
actual sale of drugs.

Nevada law only prohibits people from acquiring a medical marijuana
card who have been convicted on sale of controlled substances charges.
Henderson, Bartlett and police insist the program has worked well
overall. "As in any program, some people stand out," Bartlett said.
"The majority of the participants have been great. I am surprised by
the large number of people who have said how much they appreciate this
program. It has changed my perspective. This program has really helped
some people."

Werner had 30 mature and 13 immature marijuana plants at the time he
was arrested by marshals, Olsen said, not the 27 he says were
confiscated.

Like Werner, Southern Nevadan medical marijuana patient Bill Kosinski,
31, has begun a business, Medical Marijuana Consultants of Nevada, to
help people acquire marijuana cards.

Unlike Werner, he will not sell marijuana to his clients. "He is a
little more radical than I am," Kosinski said. "I am trying to be more
professional."

But Kosinski refuses to bad-mouth Werner, who helped him secure his
medical marijuana card.

"Marijuana is less harmful than alcohol or tobacco," Kosinski said.
"People are still scared because they call it a drug." About 170
different doctors have recommended marijuana for their patients. A few
doctors have recommended many people, according to Bartlett. She
cannot under law advise patients which doctors to contact. The
Legislature did not appropriate any money to the Agriculture
Department to operate the program, but Henderson will begin
implementing fees on participants starting in July.

There will be a $150 annual registration charge and a $50 charge for
mailing out applications forms. Five of six people who are mailed
applications never return them.

The program was created after voters overwhelmingly passed a
constitutional amendment in 1998 and 2000 that allows people with
medical problems to use marijuana.

With recommendations from doctors, they can grow marijuana to treat
chronic or debilitating medical problems like glaucoma and cancer.
State law requires the names of participants to remain confidential.
The Agriculture Department cannot even share the names of participants
who want to talk with other people in the program. The law permits
participants to keep no more than an ounce of usable marijuana on
hand. They can grow seven plants, but only three can be mature.
Kosinski "medicates" himself four times a day for chronic back pain.
He swears he never was a hippie, that he used marijuana only few times
as a college student and turned to it regularly only after hurting his
back in a car accident.

Werner will challenge his arrest and demand that authorities return
his plants and hydroponic growing equipment. He was arrested after
waving a plant in front of a neighbor, who promptly called police.
Although his act might not have been discreet, Werner said he does not
see why he must hide something that is legal for him to use. He notes
the Nevada medical marijuana law includes an "affirmative defense"
argument, first pointed out in the August 2002 issue of Nevada Lawyer
by a legislative staff attorney.

"As long as you are providing medical marijuana for yourself or
others, they cannot bust you for delivery or cultivation," Werner
said. "It is allowed under the affirmative defense." That law states a
medical marijuana patient can argue in court as a defense that his
doctor believes he needed more than the seven allowed marijuana plants
or that he needed to grow more to deliver to other patients.

Assemblywoman Chris Giunchigliani, D-Las Vegas, said she was not aware
of the affirmative defense argument when she drew up the medical
marijuana law at the 2001 Legislature.

Giunchigliani lifted the medical marijuana law from Oregon. Hearing
records show the affirmative defense argument never was mentioned by
Nevada lawmakers.

"Let's use some common sense here," she said. "The statute was not to
allow people to become distributors."

Session, the deputy attorney general, said it appears the affirmative
defense statute allows more marijuana than the seven plants or one
usable ounce.

"But it looks to me a hard defense to make," she said. "It would all
depend on the amount. If it is an ounce and a half, maybe. But 2
pounds? I don't see a physician coming in and saying he has a
condition where he needs 27 plants."