PATIENTS, DEPUTIES LEFT GUESSING

San Bernardino County Sheriff Gary Penrod doesn't hesitate to express his
opinion about medical marijuana.

"I think it's just a step to legalize drugs," the county's top cop said.
"I'm opposed to it."

But six years after California voters approved Proposition 215, the
statewide initiative that legalized the use of marijuana for medical
purposes, both proponents of the law and narcotics officers continue to
disagree over how the law should be implemented.

"It's forcing district attorneys, police and law enforcement agencies to
make up their own rules," said Detective Robbie Ciolli, a member of the
Sheriff's Marijuana Eradication Team.The problem, both sides agree, is that
the law only requires a person to secure a doctor's recommendation
(prescription) to use marijuana for almost any ailment and doesn't set how
much patients can grow.

Caught in the Middle

Like other medical marijuana patients, 55-year-old Gene Weeks of Apple
Valley, is caught in the middle.

On three occasions, deputies have confiscated marijuana and growing
equipment from Weeks, who has a doctor's recommendation to use pot to
alleviate severe back pain, but so far, prosecutors have not filed any
criminal charges against him.

"Why do we have that law if you can't grow it?" Weeks asked "What amount is
OK?"

The Sheriff's Department's policy on medical marijuana is simple. Deputies
investigate any case as a crime even if the person has a doctor's
recommendation to use the drug, Ciolli said.

"We are putting the burden on them to prove that they have a legitimate
reason to cultivate and use marijuana," he said.

Deputy District Attorney James Hosking, the only prosecutor in the
Marijuana Suppression Unit, said he looks at each case to determine if a
person growing marijuana has a valid medical reason.

If a person is growing large amounts, it's likely they are not just growing
pot for themselves, and Proposition 215 does not cover the distribution,
transportation or sale of the drug, he said.

"If we think so, then we file charges and take the case to a judge,"
Hosking said.

Some local medical marijuana patients have secured probation terms allowing
them to use the drug with a doctor's recommendation, but even that hasn't
protected them from having their pot taken by sheriff's deputies.

Gary Barrett, 34, and Anna Barrett, 31, had their entire garden confiscated
in October despite a deal they cut with a prosecutor in July 2000 that
allowed them to grow up to 34 flowering plants each for medicinal use after
they pleaded guilty to cultivation.

Managing Chronic Pain

Gary Barrett said marijuana helped him kick a heroin habit and also eases
his pain from Crohn's disease, a digestive tract disorder. His wife said
she uses pot to treat chronic pain she has suffered since a fall from a
five-story ledge in 1995.

Superior Court Judge Stephen Ashworth later struck a probation term that
re-stated the provision in the Barretts' plea agreement allowing them to
grow, so when their probation officer discovered the couple's marijuana
garden, he called deputies, who promptly plucked the plants.

But during a hearing after the plants were taken, Ashworth said he did not
intend to prohibit the couple from harvesting and using marijuana when he
removed the probation term.

"These are court orders that they are denying," Gary Barrett said. Ciolli
contends the two were growing more pot than they needed for personal use,
but the Barretts said they were within the parameters set by the court.

"They are estimating 87, but I'd say not even a dozen were living," Gary
Barrett said.

The District Attorney's office filed felony marijuana cultivation charges
against the Barretts this month, but the couple said they have a defense
since both of them have recommendations to use the drug.

"I didn't do anything against the law, and we were within the limits set by
the plea agreements," Gary Barrett said.

The Barretts and three other local medical marijuana patients plan to
petition the court Friday to have their growing equipment and marijuana
returned. But Ciolli said most of the marijuana confiscated by his team is
promptly destroyed by court order.

"The stuff will start to rot and mold" in evidence lockers, he said.

Legitimate medical marijuana patients whose property is seized and not
returned may have some civil remedy, San Bernardino County Superior Court
Presiding Judge Michael Welsch said.

The Barretts have already filed one lawsuit against the Sheriff's
Department and a detective. They want about $300,000 in damages for pot,
growing equipment and personal property confiscated during a 1999 raid at
their Victorville home.

Voters Give Their OK

Voters in Nevada, Arizona, Alaska, Colorado, Maine, Hawaii, Oregon and
Washington have also given the nod to medical marijuana laws, but the
proponents of those initiatives learned from California's experience and
set guidelines that patients must follow in order to be legal.

In Nevada, a person with a doctor's recommendation to use pot can secure a
photo identification card through the Department of Agriculture after
passing a criminal background check. The state does not issue cards to
people who have been convicted of possessing drugs for sale, Nevada Senior
Deputy Attorney General Gina Session said.

Patients and their caregivers can only grow a maximum of seven plants, with
only three of them being mature and ready for harvest, according to the
law. "In California, there is no state agency involved," National
Organization for the Reform of Marijuana Laws Executive Director Allen St.
Pierre said. "It's just a (doctor's) recommendation."

This has made those growing medical marijuana in California a prime target
for law enforcement, Pierre said.

"(Police) can divorce themselves from their humanity, their compassion and
more importantly their constitutional duty," he said.

Prosecutors in some California counties have set their own guidelines
regarding how much marijuana a person with a doctor's recommendation can grow.

In Inyo County, the District Attorney's office decided that a person with a
recommendation can grow up to six plants for personal use.

"If they have a valid prescription and they are within in the guidelines, I
am walking away from it," said Sgt. John Eropkin, of the Inyo Narcotics
Enforcement Team.

So far, the sergeant said he hasn't encountered any medical marijuana
patients actually abiding by the rules. Instead, deputies find people
growing too much or people sharing or selling their pot.

San Bernardino County District Attorney-elect Michael Ramos said he doesn't
have any plans to set limits for medical marijuana patients when he takes
office in January, but did say he will look into the issue.

Parameters Need to Be Set

Ciolli said state lawmakers with the help of doctors should set the
parameters for Proposition 215 so law enforcement agencies in California
can be on the same page.

"It's very confusing to those that want to cultivate marijuana," he said.
"It's a real problem for those that enforce it, and it's a real problem for
those who prosecute it because there are no guidelines."

A bill that would set up a state registry for medical marijuana patients
and create a committee to decide how much pot patients can grow has
languished in the California legislature since 1999.

The bill introduced by state Sen. John Vasconcellos D-San Jose, hasn't made
it to Gov. Gray Davis's desk because the backers of the legislation fear he
will veto it.

"The governor believes that this is a federal issue," Davis spokesman Russ
Lopez said. "He believes that federal law supersedes state law in this case."

Federal law lists marijuana as a Schedule I narcotic, deeming it has no
legitimate medical use, and the Drug Enforcement Administration has raided
and shut down centers set up to distribute the drug in Los Angeles, San
Francisco and Santa Cruz.

Some say California's lax medical marijuana is to blame for the federal
interference.

"We think it's very important that we get these bills passed so they can
take some of the focus off California," Attorney General's office
spokeswoman Hallye Jordan said.

But U.S. Drug Enforcement Administration spokesman Will Glaspy said federal
officials haven't targeted California. He said that it just appears that
way because the marijuana legalization lobby overly publicizes any federal
enforcement action taken in the state.