Criminal
Jul. 20, 2002
Decisive Victory for Medical Marijuana
SAN FRANCISCO - The California Supreme Court handed proponents of the state's landmark medical marijuana initiative a major victory Thursday in a ruling equating marijuana use for health reasons with any other prescription drug.
"This is a wonderful decision for patients," said Gerald Uelmen, a Santa Clara University law professor who argued the case on behalf of a Tuolumne County diabetic man, Myron Mower.
Despite the decision, prosecutors remained critical of the law.
"The fact that it's been over six years since the law was approved and we are still trying to figure out what it means is testament to how poorly written it is," said Larry G. Brown, executive director of the California District Attorneys Association.
Attorney General Bill Lockyer, whose office argued for the prosecution, said the ruling "provides much-needed guidance in interpreting an initiative that did not clearly specify how the law should apply."
Despite Thursday's ruling in People v. Mower, 2002 DJDAR 8025, medical marijuana users in California still face the threat of federal prosecution because of the U.S. Supreme Court's decision last year in United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483. That decision found there was no "medical necessity" defense to federal drug laws.
However, the state Supreme Court, in a footnote to Thursday's ruling, held that the federal high court's decision had no bearing on the questions of state law in Mower.
"The [California] court made it unmistakably clear that while the medical use of marijuana may be punished under federal law, it can't be punished under state law because of Proposition 215," said Ann Brick, an attorney for the American Civil Liberties Union of Northern California, which had submitted briefs in support of Mower.
The ruling - the first in which the state's highest court addressed the medical marijuana law - overturned Mower's felony conviction for possession and cultivation of a controlled substance after police discovered 31 marijuana plants at his home. Mower, who is legally blind, had used the drug for 20 years to control nausea and stimulate his appetite.
The decision also reversed a 5th District Court of Appeal ruling in December 2000 upholding the conviction.
Thursday's unanimous decision found that Proposition 215, the 1996 initiative approved by California voters that created the Compassionate Use Act, gives defendants in Mower's position a limited immunity from prosecution. That means, the court said, that they can not only defend themselves at trial by claiming to be a patient or primary caregiver allowed to use marijuana, but can also move to dismiss charges in advance of trial on those grounds.
The decision examined the meaning of a section of the initiative that said the state's criminal marijuana law "shall not apply to a patient, or to a patient's primary caregiver" who possesses or grows the drug "for the personal medical purposes of the patient," with a doctor's approval.
A defendant still will be required to prove his or her status as a legal pot user, but only by establishing reasonable doubt as to the fact underlying the defense, rather than under a more onerous preponderance of evidence standard, the court ruled.
It was on that latter point that the court said Mower's conviction must be reversed. The judge in Mower's Tuolumne County Superior Court trial had instructed the jury that the defendant was required to prove the underlying facts in his defense by a preponderance of evidence.
In holding that defendants are required to raise only a reasonable doubt, the 32-page opinion, written by Chief Justice Ronald M. George, drew a parallel with defenses required of people accused of possessing pharmaceuticals.
"As a result of the enactment of [the 1996 law] 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," George wrote.
Medical marijuana advocates said they hoped the decision would mean more uniformity in the way such cases are handled throughout California.
"I would say there has been a fair amount of difference in the way different jurisdictions have litigated these cases," said Judy Appel, deputy legal affairs director for the Drug Policy Alliance in Oakland. "This case is important in setting statewide standards, putting medical marijuana patients at par with other patients."
With the less burdensome standard of proof, George said, the jury might have found Mower innocent in light of disputes at trial over the actual size of the crop Mower could have expected from his plants.
"We come to this conclusion because the jury might have found that defendant raised a reasonable doubt - to wit, whether the 31 marijuana plants would yield a harvest of only about five pounds for a year's supply," George wrote.
At the same time, however, the court declined to rule on whether counties hold authority to limit how many plants a person could cultivate and still claim personal medical use. Tuolumne County's standard was three plants; other counties have set higher amounts.
Brick praised the "very protective" standard set by the court.
"All the defense has to do is raise a question in the jury's mind about whether the act applies," said Brick. "If the question is there, the defendant wins."
Although the court rejected Mower's more sweeping argument before the appeal court that the medical pot law provided "complete" immunity, even from arrest, Uelmen suggested that may be of little consequence. He said Mower had dropped that argument before the Supreme Court.
At any rate, he said, law enforcement might now have little stomach for making arrests in cases where a medical defense may be raised. The Supreme Court held that defendants could attempt to dismiss charges against them under Penal Code Section 995 by showing a lack of probable cause for the indictment.
"Clearly, if a patient presents a valid prescription or authorization, they should not be arrested," Uelmen said. "That would certainly defeat the probable cause to make an arrest."
Although Thursday's opinion returned Mower's case to the appeal court with instructions to remand it for a new trial, Uelmen said he hopes the case will be dropped.
However, Tuolumne County District Attorney Donald Segerstrom said he had not made any decision about whether to re-try the matter.
Lockyer said he agrees with the court that the initative does not confer complete immunity but allows the courts to decide whether a defendant is appropriately charged. "While today's decision changes the standard jury instruction that has been employed in similar cases throughout California, it is unclear what impact it will have on previous marijuana convictions," Lockyer said.
Although the decision was unanimous, Justice Marvin Baxter disqualified himself because his brother-in-law, James Ardaiz, presiding justice of the 5th District Court in Fresno, wrote the appellate court decision.
Sitting in Baxter's place was Justice Nathan Mihara of the Court of Appeal in San Jose.
Dennis Pfaff
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