MEDICAL-MARIJUANA USERS WALK FINE LINE

Jim Fabeck called the district attorney's office looking for answers.

Instead, he says, he hung up feeling like a criminal.

Fabeck, 57, said he actually has called the San Joaquin County District
Attorney's Office three times to find out more about the county's take on
Proposition 215, which allows California residents with certain conditions,
such as cancer, AIDS and chronic pain, to use marijuana for medical
purposes.

He called once last year and twice this year. Each time, he said, he hung up
frustrated.

A grandfather who lives in a quiet community in a neatly maintained home,
Fabeck has a doctor's recommendation to use medicinal marijuana. He doesn't
see himself as a drug addict. He doesn't see himself as a doper. But after
the receptionist transferred his call to an unidentified worker there, he
wondered if that was the district attorney's office's view of him.

"I'm a legally certified person who can (use) this," Fabeck said. "He didn't
say anything that helped me. He kept saying, with this wise attitude: 'We
can't give you legal advice. You have to hire a lawyer.' I don't want a
lawyer. All I want to know is: What is the law so I don't break it?"

Deputy District Attorney Phillip Urie has researched Proposition 215. He
just concluded prosecuting Brian Bader, a Lodi roofer convicted this month
of marijuana possession and cultivation.

He called Fabeck's experience with the district attorney's office
"unfortunate," offering regrets for others' rudeness.

He also said that since other trial deputies don't have a lot of exposure to
Proposition 215, they may not be able to answer questions about it.

Legal Dilemma

For more than 17 years, chronic pain from arthritis and back injuries has
plagued Fabeck. He also struggles with chronic anxiety.

A couple of puffs on a joint, he said, eases those situations.

He'd like to grow his own marijuana so he doesn't have to make the nearly
two-hour drive to one of Oakland's cannabis clubs, where he sometimes pays
up to $150 for a small supply of pot. But he says he doesn't know how much
he can grow without risking arrest.

And that's a humiliation he doesn't want to endure.

In 1996, California became the first state to effectively remove criminal
penalties for qualifying patients who grow, possess and use medical
marijuana. Alaska, Oregon, Washington, Maine, Colorado, Nevada and Hawaii
followed suit. The District of Columbia, too, passed similar legislation,
but because it is not a state, Congress was able to overrule the law.

A bill introduced in the California Legislature by Sen. John Vasconcellos,
D-Santa Clara, if passed, would establish a voluntary program for the
issuance of identification cards for medical-marijuana patients. It also
would prohibit arrest for possession, transportation, delivery or
cultivation of marijuana of someone who has a valid ID card.

Dale Gieringer, spokesman for the Northern California chapter of the
National Organization for the Reform of Marijuana Laws, said the
organization supports Vasconcellos' bill.

"It outlines a basic framework for sensible enforcement," Gieringer said.
"The most-important issue at the moment is that patients should be treated
as if they are engaged in lawful conduct if they are found with marijuana at
their home with a valid recommendation. We don't think (they) should be
treated differently than (if they had) prescription drugs."

Hallye Jordan, spokeswoman for Attorney General Bill Lockyer's office, said
her boss also supports the bill.

"There are some things that will help law enforcement to be able to tell the
difference between those who use marijuana for medical reasons and those who
use it for recreation," she said.

The California Supreme Court is set to take up the issue in June.

"They're going to be hearing about whether (Proposition 215) is just a
defense, or does it protect people from arrest and prosecution?" Gieringer
said.

Urie said prosecutors are afraid Proposition 215 has become a smoke screen
for people who want to grow and sell marijuana without fear of arrest.

To mount a successful defense under Proposition 215, one must prove three
elements in court:

* There must be a serious illness for which marijuana will provide relief.

* A medical doctor must recommend its use.

* The amount of marijuana cultivated must be reasonably related to the
defendant's medical needs.

"There are a lot of people out there who think that once they get a
recommendation from a doctor, it's a get-out-of-jail-free card, and that is
not true," Urie said.

Officials with the San Joaquin County Sheriff's Office and the Stockton
Police Department say they consider each case that could involve a
Proposition 215 defense individually before making an arrest.

Sheriff's Office spokeswoman Nelida Stone said that instead of arresting
individuals, deputies will submit reports to the district attorney's office
and let that office sort out whether an arrest is warranted.

Guidelines

Urie has advice for those who use marijuana for legitimate medical reasons.

"Don't grow any more than you need," he said. "And don't buy it, and don't
sell it to anybody else. Because it's still illegal to sell, and the defense
does not apply to sales."

Possession and use of marijuana -- for any reason -- is still illegal under
federal law. Federal penalties are stiff -- up to a year in prison for as
little as one marijuana cigarette; up to five years for cultivation of even
one plant.

"It's a very critical line that these patients are dealing with here,"
Gieringer said. "Theoretically, it's perfectly legal, but if the court
determines ... that it's not, the alternative is a felony. There are some
really dire consequences for making a mistake here."