JUDGE DISMISSES POT CONVICTION

A Fairbanks judge ruled the Alaska Constitution guarantees a local man
the right to possess marijuana for personal use in his home.

In a decision rendered last week, Superior Court Judge Richard Savell
dismissed the Fairbanks man's conviction for pot possession, ruling
that a 1975 Alaska Supreme Court decision legalizing personal
marijuana use by an adult in their home is still the law.

Savell agreed with arguments made by an attorney for Scott A. Thomas,
42, who was charged with three counts of felony fourth-degree
misconduct involving a controlled substance for allegedly growing pot
plants in a Tonsina Drive residence last summer.

The case went to trial in May and the jury found Thomas guilty of one
count of a misdemeanor charge of sixth-degree misconduct involving a
controlled substance for possessing 2.6 ounces of marijuana.

Lawyer Bill Satterberg immediately filed a motion for Savell to
dismiss the guilty verdict based on an argument that the law under
which Thomas was convicted was not constitutional as determined by the
controversial 1975 state Supreme Court decision made in Ravin v. State.

The decision made it legal for adults to possess marijuana in their
homes for personal consumption as long as the amount of the drug
didn't exceed enough to constitute "an intent to deliver."

Four ounces of marijuana or more was considered the intent to deliver
threshold when the decision became part of the state's criminal code,
but state law has since placed the amount at eight ounces.

The justices ruled in Ravin that possession of pot by an adult in
their home was allowed as a fundamental constitutional right to
privacy. However, a 1990 voter initiative changed state law to make
possession of any amount of marijuana in any location illegal.

In Thomas' recent case, the defense argued that the portion of the law
prohibiting possession of marijuana for personal consumption by an
adult in their home is unconstitutional.

"A direct conflict in the law exists between the right to privacy
guaranteed under the Alaska Constitution and the statutory prohibition
.. which criminalizes the personal use of marijuana by an adult in
the privacy of the home, regardless of the quantity of the prohibited
substance," reads a portion of Thomas' motion to dismiss his conviction.

Savell granted the motion on June 25, writing in pen under his
signature of approval that "Ravin stands."

Jim McLain, a legal clerk in Satterberg's law office who drafted the
motion for dismissal, called the decision significant.

"My understanding of it is that if Ravin is still the law, then
marijuana is still legal," said McLain, a former attorney.

He said Savell's decision does not necessarily set precedent,
"although in reality it may be indicative of what other judges in
Fairbanks do."

McLain added that he expects a more broad-scale debate to develop soon
about whether Alaska's marijuana possession law is constitutional.
McLain said he believes that the 1990 voter initiative that
criminalized all pot use in the state is not binding, considering
voters do not have the power to change the constitution through the
initiative process.

In a 1998 Alaska Law Review article that McLain included in his
motion, author Andrew Winters also argued that Alaskans have a
constitutional right to possess marijuana in their homes.

"Ultimately, the limited actual enforcement of private marijuana
possession means both Ravin and the initiative that attempted to
invalidate it have a great deal of symbolic value. Ravin is a symbol
that Alaska should be proud to endorse, a symbol of the value that
Alaska places on personal autonomy," Winters wrote in his conclusion.

It's possible that the District Attorney's Office could appeal
Savell's decision. The Distract Attorney assigned to the case was not
in his office Thursday and unavailable for comment.