HIGH COURT PROTECTS MEDICAL POT USE

Fewer prosecutions expected after state Supreme Court's ruling

(SIDEBAR) MEDICAL POT LAW EVOLVES -Medical pot users can still be arrested,
but evidence of a doctor's approval can get the charges dismissed -Case may
still be tried if amount of pot is considered large or doctor's approval is
questionable

SAN FRANCISCO - Ailling Californians who use or grow marijuana with a
physician's approval are protected by state law from prosecution, the state
Supreme Court unanimously decided Thursday.

In its first review of the medical marijuana initiative, which was approved
by voters in 1996, the court said medical users who are arrested may have
the charges dismissed without a trial if a doctor has approved use of the
drug. The ruling overturns the felony conviction of a blind diabetic who
was arrested after police spotted 31 marijuana plants growing in the front
yard of his home in Twain Harte, in Tuolumne County.

"The possession and cultivation of marijuana is no more criminal--so long
as its conditions are satisfied--than the possession and acquisition of any
prescription drug with a physician's prescription," Chief Justice Ronald M.
George wrote for the court.

Until Thursday, all major rulings on Proposition 215, the state's medical
marijuana law, have been made by federal courts and based on federal law.
The U.S. Supreme Court, in a case on the California initiative, ruled that
there is no medical exception for the use of marijuana under federal law.

But individual users and growers in California are generally prosecuted in
state courts, which are required to follow Thursday's ruling.

Gerald Uelmen, a University of Santa Clara law professor who argued the
case for defendant Myron Carlyle Mower, said the decision will reduce
prosecutions throughout the state.

Dozens of Californians have been arrested on marijuana charges despite
claims of medical need, he said.

"It is a wonderful victory for patients," Uelmen said.

He said he hoped the ruling will discourage police from arresting those who
grow marijuana and have a doctor's note recommending its use.

Ann Brick, a lawyer with the American Civil Liberties Union, which also
argued for Mower, praised the court for being "quite protective of the
rights of medical marijuana patients."

"The court is making very clear that it understands the people of
California wanted to confer real protection to the medical users of
marijuana, and this decision helps make that possible," Brick said.

The state attorney general's office, which represented Tuolumne County
prosecutors in the appeal, said it was reviewing the decision.

California is one of nine states with medical marijuana laws. The decision
was the first by a state high court on such a law, Uelmen said. Under
Thursday's ruling, a grower or user can present evidence of a physician's
approval, such as a note on a prescription pad, to a judge to have the
charges dismissed. If the amount of marijuana involved was considered large
or the doctor's approval questionable, the defendant might still face a
trial to determine whether the marijuana was purely for the defendant's
medical use.

But the ruling also made it easier for such defendants to win if a case
goes to court. Under the court's ruling, the defendant does not have to
prove that the marijuana is solely for medical use. If there is any
reasonable doubt about the marijuana's use, the defendant wins.

The court overturned the conviction fo Mower, 40, because jurors at his
trial were instructed that he had to prove by a preponderance of the
evidence, not a mere reasonable doubt, that he had the marijuana for his
personal medical use.

Mower, who has had diabetes since he was 8, had testified that the 31
plants would supply him with five pounds of marijuana in a year and
estimated his consumption at eight grams a day.

An expert witness for the defense testified that the plants would yield
4.35 pounds a year, but an expert for the prosecution countered that the
plants would produce 31 to 62 pounds.

Mower, who said he cannot maintain his weight without using marijuana, had
been sentenced to five years' probation for growing the plants.

"I have a doctor who completely agrees with me that I need to have this,"
Mower said. "I have nausea all the time and wasting syndrome. "And if I
smoke a little, I am in the kitchen looking for something to eat and drink."

The issue in Mower's case was the relatively large number of plants he was
growing. A Tuolumne County police policy says medical users can have only
three plants.

Mower said he hopes to return to court and ask a judge to permit him to
grow more than three plants, which are "not anywhere near enough."

He said he needs to smoke about six or seven marijuana cigarettes a day and
has been forced to buy from an illicit dealer.

Counties around the state have different policies about how many plants a
medical user may grow. The permitted amounts range from three plants to 99.
Thursday's ruling did not address these varying policies.

Law enforcement policies in Sonoma County allow medical marijuana users to
have up to 99 plants or three pounds of processed pot, while Mendocino
County allows up to 25 plants or two pounds.

For users who are not advised to smoke marijuana for medical reasons,
possession of less than an ounce in California is a misdemeanor punishable
by a $100 fine. Cultivation is a felony.