STATE RULES ON MEDICAL MARIJUANA

Justices Agree That Seriously Ill Patients and the Doctors Are
Protected

SAN FRANCISCO - State Supreme Court justices unanimously agreed
Thursday that California law provides protection for seriously ill
patients who use marijuana and the doctors who provide it.

In a decision that cleared out some legal fog created with the passage
of Proposition 215 in 1996 -- which said those who use the drug on a
doctor's recommendation are not subject to criminal prosecution -- the
justices agreed that some can fight marijuana charges with a necessity
defense.

Writing for the majority, Chief Justice Ronald M. George also said in
the 34-page decision that medical marijuana users and providers have a
right to ask that drug charges be dismissed prior to trial.

The case concerns Myron Carlyle Mower, a Tuolumne County resident put
on probation after a 1993 conviction for cultivating marijuana. Mower,
who smoked the drug for two decades to alleviate painful diabetes
symptoms, was again charged in December 1997 for possession and
cultivation.

Earlier that year, sheriff's deputies found seven plants in his house
during a search, but did nothing after learning his doctor had
prescribed it. Five months later, another search turned up 31 plants,
28 more than a limit the county had established.

A jury found Mower guilty and he was placed on five years
probation.

Mower's lawyer appealed the case, contending Prop. 215 gave Mower
complete immunity. Agreeing with Fresno's Fifth District Court of
Appeal and citing language in supporting material included with the
measure that went before voters, Supreme Court justices denied that
claim.

But pointing out provisions in the law and other areas of California
code, the justices agreed medical marijuana users and providers can
defend themselves from charges by proving they need it for health reasons.

"This case makes it clear that we're going to treat marijuana the same
as prescription drugs," said Santa Clara law professor Gerald Uelmen,
who argued the case before the high court. "I think it's a very
significant victory for patients and caregivers."

In Mower's case the trial jury had been instructed it needed to find a
preponderance of evidence to prove the drug had been prescribed. The
justices noted that a defense lawyer needed only to prove it beyond a
reasonable doubt.

The ruling runs counter to the U.S. Supreme Court, which ruled last
year that people who use marijuana for illnesses cannot fight federal
drug charges with a medical necessity defense.

A footnote in the state Supreme Court decision maintained that case
"has no bearing" on the Mower case.

Jeff Jones, who as director of Oakland Cannabis Buyers' Cooperative
was at the center of the federal legal action, said Thursday's ruling
provides "a clear line" to guide a patchwork quilt of enforcement
practices around the state.

"In some parts of the state the district attorney and the sheriff have
said there is a zero tolerance for medical cannabis," Jones said. "In
some rural counties it could provide a defense that has never been
used. Even if the judges are biased, they will have a set rule that
they have to follow."

Attorney General Bill Lockyer, whose deputies maintained medical
marijuana patients did not have an absolute immunity from prosecution,
said the decision cleared murky waters left behind with Prop. 215's
implementation.

"As a supporter of Proposition 215, I believe that the court's
decision strikes an appropriate balance in helping ensure that truly
needy patients whose doctors have recommended medical marijuana to
alleviate pain and suffering related to serious illness will have
access to this medicine under California law," Lockyer said in a
written statement.

It was not clear, Lockyer said, whether the ruling would affect
previous convictions.