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November 30, 2009

Interesting California ruling on juries and medical marijuana

Thanks to How Appealing, I discovered this interesting ruling from one of California's Courts of Appeal concerning a state marijuana prosecution.  As this article in the San Diego Union-Tribune explains, this court "ruled that exactly how much marijuana a medical-marijuana user can legally possess is a question that jurors should decide, and using limits defined in state law is improper." Here's more:

Nathaniel Archer of San Diego was appealing his 2007 convictions for cultivating and possessing marijuana. Archer was a medical-marijuana patient who was arrested by San Diego police with 98 pot plants in his residence and an additional 1.72 pounds of dried marijuana.

He was convicted and sentenced to probation. The appeals court reversed his convictions for possession of the drug, concluding that it was wrong to use limits that the Legislature established in 2003 on the amount of marijuana a patient could have. That law amended the Compassionate Use Act, the voter-approved initiative in 1996 that allowed the medical use of marijuana. Under the state constitution, the Legislature can’t amend an initiative, unless doing so is specifically allowed in the initiative’s language that voters approve.

The Supreme Court heard arguments on that same issue Nov. 3 in an unrelated case, and a ruling is expected soon. Most observers expect the court to strike down the numerical limits as unconstitutional.

In Archer’s case, the Attorney General’s Office conceded that the numerical limits were indeed unconstitutional, the opinion says. It argued his possession conviction should stand because telling jurors to use the numerical limits, as Superior Court Judge Kerry Wells did at Archer’s trial, was not prejudicial.

Justice Patricia Benke, who wrote the opinion, disagreed. Benke said that with both sides conceding the numerical limits were unconstitutional, the only standard that could be applied was whether the amount of marijuana was “reasonably related” to a patient’s medical needs.

Archer testified that he used about half a pound of marijuana per month. It would be up to a jury to decide how much of the 1.7 pounds he possessed — about a three-month supply, Benke calculated — was reasonably related to his medical needs.

Russell Babcock, Archer’s lawyer, said the decision will have an impact on other cases. “This has real ramifications,” Babcock said. “It becomes a case-by-case basis for juries of reasonableness.” Some patients use large amounts of the drug, because they use it in baked products, lotions, oils or other applications.

Alex Kreit, a professor at the Thomas Jefferson School of Law and head of San Diego’s Medical Marijuana Task Force, said that the decision is important because it means people will not be automatically subject to prosecution if they exceed the limits.

November 30, 2009 at 09:08 AM | Permalink

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Comments

California's medi-pot law is institutional hypocrisy in action. The catch-all provision that lets doctors approve marijuana for "any other illness for which marijuana provides relief" has effectively made the drug legal in some California communities. Any resident older than 18 who gets a note from a doctor can visit a convenient compassionate-care clinic (they are more common than Starbucks) and buy the drug. Oversight is nill as doctors are largely protected from second-guessing by confidentiality laws. In exchange for a $200 consultation fee and a complaint as vague as anxiety, insomnia or chronic pain, patients arrive at "clinics" on bicycles, roller skates, and skateboards.

Clearly, better oversight is needed before this lunacy spreads to other states

Posted by: mjs | Nov 30, 2009 12:12:11 PM

mjs, the "institutional hypocricy" you decry is in society's criminalizaton of marijuana, a substance that harms very few, and in its legalization of cigarettes and alcohol, substances that kill thousands upon thousands. My hope is that this "lunacy" you deprecate spreads to every state as fast as possible.

Posted by: anon 1 | Nov 30, 2009 2:52:19 PM


anon: I would prefer to see marijuana legalized for all rather than have this "charade" continue.

Posted by: mjs | Nov 30, 2009 4:12:49 PM

anon 1: Rather than trot out old bromides about the dangers of alcohol and cigarettes, please defend the weaknesses of the charade known as the California medi-pot law.

Posted by: mjs | Nov 30, 2009 9:41:49 PM

shocking to hear i think that if u are legal u can grow as much as u need

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Most of the identified health risks of marijuana use are related to smoke, not to the cannabinoids that produce the benefits. Smoking is a primitive drug delivery system. The one advantage of smoking is that it provides a rapid-onset drug effect. The effects of smoked marijuana are felt within minutes, which is ideal for the treatment of pain or nausea.

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