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December 30, 2009

"Nothing Mellow About Dissent in Medical Pot Case"

The title of this post is the headline of this notable article from law.com, which reports on this interesting state appellate ruling from California dealing with an interesting issue about conditions of probation.  Here are the details:

In an unusually contentious ruling Monday, California appellate court Judges Paul Haerle and J. Anthony Kline got in each other's faces about whether a judge can order a criminal defendant to stop using medicinal marijuana while on probation when the underlying crime has nothing to do with pot use. Kline says you can't. Haerle says you can, and -- unfortunately for Kline -- Haerle was backed in the 2-1 ruling by Justice James Richman.

The opinion focused on Daryl Moret Jr., who pleaded no contest to possession of a concealed firearm on the condition he abstain from using marijuana, which he claimed a doctor had recommended for chronic migraine headaches.

Solano County Superior Court Judge Peter Foor insisted on the condition because he had doubts that Moret needed pot for medicinal reasons and felt the substance could only lead the 19-year-old -- who had also embezzled $2,000 from a former employer and said he found the stolen gun in some bushes -- to further crimes.  Moret's other choice? Jail.

"After balancing all these considerations, the trial court determined that it would help in 'basically straightening things out' and 'being a productive member of the community' that he abstain from using marijuana while on probation," Haerle wrote. "Thus, the trial court clearly and properly exercised its discretion."

An irked Kline responded by saying the majority opinion "flies in the face of the law," "subordinates the will of the people" and is "legally untenable."

"This court's [ruling]," he wrote, "permits imposition of conditions of probation that are unrelated to the crime of which the defendant was convicted, forbids conduct that is not criminal and requires conduct that has no relationship to the defendant's future criminality. No modern California court has ever done such a thing, which is precedent shattering."

December 30, 2009 at 12:06 PM | Permalink


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Good call by the judges. Now maybe his migraines can be treated with stronger drugs, prescribed by a doctor, perhaps some form of opiate.

Posted by: Anonymous | Dec 30, 2009 12:43:03 PM

I was under the impression that requiring convicts to stay away from bars and otherwise not use alcohol was a typical probation condition even where the crime had no relation to alcohol. If that impression is correct I don't see this being a whole lot different. Somewhat different in that in theory there are supposed to be more controls on marijuana distribution but given how lax the actual situation appears. *shrug*

Perhaps that impression is simply wrong? In that case this condition would trouble me much more.

Posted by: Soronel Haetir | Dec 30, 2009 12:44:17 PM

This is as apt and (for purposes of this blog) timely reminder of (1) what the real story is with these dopers, and (2) what a sham this medical marijuana stuff is.

What I thought was particularly interesting was the concurring opinion, written by someone who seems to be a moderate-to-liberal judge. Have a look.

What the case is about is a 19 year-old who told the court he found his loaded pistol in the bushes (I'm not making this up) and kept it because he "felt threatened," although he neglected to say by whom or for what. He had also embezzled $2000 from his former employer. He admitted starting on dope when he was 16, but, only after his arrest and plea, discovered that he "needed" it to treat his "migraine headaches," as to which there was no medical evidence. So shortly before his post-conviction interview with the PO, he obtains a medical marijuana card and, with that, now claims that the no-dope condition of his probation is illegal.

What's noteworthy about this story is the window it opens on all the grand talk we're hearing about how dope is indispensable to freedom. What tripe. Read the court's opinion if you really want to find out what dope is really about. It's about a kid who starts getting buzzed in high school, becomes a thief as the restraints of sober life ebb away, steals a gun (in all probability, unless you believe the I-found-it-in-the-bushes tale), perjures himself effusively in court, presents nothing like a doctor's note that he actually has these supposed migraines, much less that he needs marijuana, and then is furious BECAUSE THE JUDGE STILL WANTS TO GIVE HIM A BREAK, ONLY HE'S GOT TO QUIT THE DOPE.

This is real life. Those of you who think lowering the barriers to marijuana use is a good thing should take this case to heart.

Posted by: Bill Otis | Dec 30, 2009 12:53:02 PM

Yes, because marijuana use inevitably leads to gun possession and embezzlement.

The 99% of marijuana users who enjoy it without ever committing any (other) crimes don't make the papers.

Posted by: Common Sense | Dec 30, 2009 1:16:18 PM

That's it, Common Sense, this story DOESN'T REALLY EXIST. Doug made it up!

Posted by: Bill Otis | Dec 30, 2009 1:21:19 PM

"Read the court's opinion if you really want to find out what dope is really about."

Not "if you really want to find out what happened to one person who smoked marijuana," but "if you really want to find out what dope is really about."

You're implying that this case is not atypical, when, in fact, I would argue that it's incredibly atypical. Saying this is what marijuana use is "really about" implies that this case is the norm, rather than an outlier. So you're arguing that most marijuana users embezzle money and illegally possess guns? You and I both know that's ridiculous.

Posted by: Common Sense | Dec 30, 2009 1:42:28 PM

Common Sense --

1. You don't dispute a single word of my recounting of the story. Not one. You just want to dismiss it, sweep it under the rug. You'll have to take that up with Doug. He put the story on the blog, not me.

2. My statement that the story shows what dope "is really about" is to contrast the kind of decision-making a person is more likely to do when stoned with the anthem of the legalization movement, to wit, that it's all about freedom.

It is NOT all about freedom. It is also not about medicine. It's about getting blitzed. This fake high-mindedness is annoying, and a story like this is an apt reminder of why it's annoying.

Posted by: Bill Otis | Dec 30, 2009 1:54:23 PM

I don't want to dismiss anything or sweep anything under the rug, and I have made no attempt to do so. I'm sure the facts in the opinion are as they were reported to the court.

The point that I'm trying to make, and that you seem to be willfully ignoring, is that this one case is not typical of marijuana users generally, any more than killing someone in a drunk driving crash is typical of beer drinkers generally. Whether you want to acknowledge it or not, that's exactly what you implied by saying this case is "what dope is really about."

Posted by: Common Sense | Dec 30, 2009 2:10:19 PM

Common Sense --

Dropping the legal barriers to dope will increase its use. Increased use will lead to an increase in its anti-social and unhealthy effects. The story illustrates some of those effects.

It is obviously the case that not every dope smoker is going to turn out to be a hoodlum or a thief. It is likewise the case that not every crack user is going to turn to to be a hoodlum or a thief. But when a story surfaces about what has become of a real life person who has used crack -- or dope -- I shall continue to feel free to use it, with or without your approval.

A story doesn't have to be typical to be revealing, as you full well know. And, as you also full well know, it is the revealing character of this story, rather than its atypicallity, to which you really object. It's just not going to do the legalization movement a bit of good, so you try to shout it down.

Nice try. Better luck next time.

Posted by: Bill Otis | Dec 30, 2009 2:27:56 PM

This post reminded me of a client I had a few months ago who suffered from chronic lower back pain as the result of a severe car accident. He was prescribed Oxycotin for the pain. As a recovering heroin addict, his oxycotin use led him to use heroin. (Oxycotin has many similar addictive principles of heroin). Fearing a relapse to either heroin (as he had been sober for 3+ years) or an addiction to oxycotin, his doctor gave him a Rx for marijuana in order to deal with his back pain. (Although not CA, I live & practice in a state that allows for medical marijuana).

The problem, however, was that said client was on federal supervised release until Jan. 2011. He continued to violate his conditions due to his medical marijuana use. The federal judge in his case recognized the medicinal necessity for his marijuana use, but also acknowledged that he was controlled by federal law. The solution: terminate supervised release early at the end of 2009 and until then require in-house confinement.

This seemed to be a good resolution to deal with a person who genuinely had a medical need for marijuana, which state law allowed for.

Posted by: medical need | Dec 30, 2009 3:05:29 PM

The drug does not produce violence. The criminalization produces violence - just as it did during alcohol prohibition. In the 1800s and the turn of the 20th century coca-cola contained cocaine, yet we did not see middle aged matrons who consumed it taking a shot gun to the drug store.

Posted by: beth | Dec 30, 2009 3:14:18 PM

medical need --

Was it also "medical need" that caused your "patient" to start with heroin? Have you considered the possibility that he just likes drugs?

Posted by: Bill Otis | Dec 30, 2009 3:15:14 PM

Bill at 3:15:14 -- Of course that wasn't the reason he started heroin. But it certainly is the reason he got a Rx for marijuana. No, it's not that he just likes drugs. If that was the case, why not just use the oxycotin (which insurance would pay for)?

Come on now...your response does not address the substance of anything that actually happened and instead ignores reality.

I'll also note that the medical documentation and other exhibits clearly showed his need as well as his fear of relapse, which again, is the only reason he was using marijuana. The judge who was presented with this saw its truth.

Posted by: medical need | Dec 30, 2009 3:27:47 PM

MOST PROBATION CONDITIONS HAVE NOTHING TO DO WITH YOUR CRIME. They restrict you from alcohol, bars, impose curfew, drug tests, even when none of these things have any tangential relation to what you pled guilty to (oh, and the 1% of defendants who are found guilty by a jury).

Then people to prison for technical violations of this shit-- like, on probation for assault and sent to jail for a beer in their house.

This is one big reason our jails are bursting at the seams.

Posted by: Praga | Dec 30, 2009 3:56:22 PM

Bill --

Although I find your hysteria kind of amusing (and not unusual among the Reefer Madness crowd), your continual misrepresentations of my arguments are tiresome.

You feel free to use stories any way you want. And I'll feel free to point out the logical fallacies in your arguments.

And thanks for telling me what I "really object to"! It's good to have you around so I know what I think.

Maybe tone down the rhetoric a little and pay attention to what other people are saying for a change. It looked like you started to get it in your last post, but just so we're all clear, here's all I'm saying: This case is not typical of marijuana users. It's "revealing" as to this particular user, but not necssarily to others.

Posted by: Common Sense | Dec 30, 2009 3:59:58 PM

This case is the first of many that will lay bare the institutional hypocrisy surrounding medical marijuana dispensaries.
More than a quarter of California's marijuana authorizations have been prompted by "patients" suffering from conditions like anxiety or insomnia. The most common is "chronic pain". (Bloggers take heart: prescriptions have been written for writer's block)

In California and Colorado, the average age of the hundreds of people a day that seek "prescriptions" has fallen precipitously. Many new customers are college students arriving at dispensaries on bikes and skate boards!

Those states considering similar statutes should proceed with caution.

Posted by: mjs | Dec 30, 2009 5:19:12 PM

Look, this kid did not need pot for migraines. The advocate making that argument had to be giggling. The idea that pot would be the only alternative, or even the best alternative, in 99.9% of all medical cases is just pure BS and we all know it (I'll concede it's probably the cheapest if you grow it).

Bill is right to say so and suggest the entire "medical marijuana" movement is the ruse that it is. Attacking him for pointing out that the system in California is joke put in place to avoid actual decriminalization (and the political backlash that would have caused) is wrong.

HOWEVER, it's the disingenuousness of Bill and his fellow travelers in the controlled substances camp, who insist that pot is somehow more dangerous than lightly regulated substances like alcohol (when it very clearly is not), that have forced the hand of states like CA who recognize the blindingly obvious.

So, now we all engage in convenient fiction and the law is made less relevant.

Hooray for America.

Posted by: Ferris Bueller | Dec 30, 2009 5:28:09 PM

medical need --

"Of course that [medical need] wasn't the reason he started heroin. But it certainly is the reason he got a Rx for marijuana. No, it's not that he just likes drugs. If that was the case, why not just use the oxycotin (which insurance would pay for)?"

Maybe he likes variety. Many of them do.

Your client starts off with heroin just to get high, but now is too pristine to seek marijuana, except for newly existing "medical need."

Do really believe that?

Posted by: Bill Otis | Dec 30, 2009 6:18:27 PM

If he likes variety, then he would use the Oxycotin, heroin, and marijuana. He's not doing that as the tests have revealed. In fact, he's trying very hard to. He has been a model person on supervised release (holding a steady job, reports regularly, does everything asked of him, I could go on...) except for using marijuana to ensure he doesn't relapse into heroin.

A sober drug addict may not dislike the fact he has to use medical marijuana for his pain, but he should be given credit that he is resorting to marijuana to avoid a relapse or an Oxycotin addiction. How you can't see that is quite telling about how narrow (and wrong) your everyone-must-be-lying view is.

It's baffling, genuinely baffling, to me how you, who know nothing about the case, can always be so sure you know what's *REALLY* occurring, and everyone else (including the judge) is wrong. He was terminated early (how often does that happen!) b/c the judge knew his medical marijuana use was sincere and because he was doing very well otherwise. ....... But no, you of course know better.

Posted by: medical need | Dec 30, 2009 6:48:50 PM

medical need --

You provide no detail from which a neutral party could fact check a single thing you say. You upbraid me for my skepticism, but do so from behind the veil of anonymity. You present what you want to, withhold what you want to, and shade what you want to.

You're the man's lawyer, so you have the right -- and perhaps, under the present rules of ethics, the obligation -- to do so.

But I am not obliged to believe a one-sided story. I am also not obliged to believe that your client, a former heroin fan as you concede, can ONLY get pain relief through smoking dope. There are dozens if not hundreds of pain relievers that aren't dope, and if, on the very off chance that none of these other things can work and he actually needs the active ingredient in dope (THC), he can get that in the legal drug Marinol.

Posted by: Bill Otis | Dec 30, 2009 7:45:48 PM

Bill, There are plenty of jurisdictions now where it is legal. Why don't you provide specific examples of the harm to society that legal pot inflicts in those places?

Posted by: s.cotus | Dec 31, 2009 12:36:54 AM

It has nothing to do with your so-called "skepticism" nor do I believe you have an "obligation" to believe me. The problem is that all I was trying to do was pass along an interesting experience that relates to this blog post, and yet you chime in as if you know more about it and can read this person’s mind. Believe me or not, I don’t care. But it's your pretentiousness that bothers me and nothing more.

Posted by: medical need | Dec 31, 2009 12:49:56 AM

medical need --

Would you please provide a citation to the case.

Posted by: Bill Otis | Dec 31, 2009 1:05:17 AM

I could seriously go for some Taco Bell right now.

Posted by: Res ipsa | Dec 31, 2009 9:32:34 AM

Res ipsa --

Ha! Point taken. I'll join you at the Taco Bell. Those things are darn good.

Posted by: Bill Otis | Dec 31, 2009 11:09:44 AM

Taco Bell? must not live near a Krystal ;)

Posted by: virginia | Dec 31, 2009 1:33:46 PM

I find it highly suspicious that this debate about marijuana is turning into a debate about fast food.

Posted by: JC | Dec 31, 2009 2:27:40 PM

JC --

You gotta quit crackin' me up.

P.S. Could you direct me to the Krispy Kreme?

Posted by: Bill Otis | Dec 31, 2009 4:16:33 PM

Ginny --

Is a Krystal like a Jack in the Box? I went to Jack all the time in midnight runs at law school. Of course my body still metabolized at that point. Well, that was then.......

Posted by: Bill Otis | Dec 31, 2009 4:35:56 PM

Jack in the Box is great, I love that place. They don't have them in Ohio, unfortunately.

Posted by: JC | Dec 31, 2009 5:09:44 PM

bill, see http://en.wikipedia.org/wiki/Krystal_(restaurant)

Posted by: virginia | Jan 4, 2010 11:38:19 AM

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