Case Tests Medical Pot Law

[Ganjarden]

The administrator of Colorado's medicinal marijuana program testified Thursday to what everybody in the courtroom already knew about nuances of the state's medical pot law: “It's subject to interpretation,” both by law enforcement and patients who possess a medical marijuana card.

Specifically, Debra Tuenge, of the Colorado Department of Public Health and Environment, was addressing a provision in the medicinal marijuana amendment to the state constitution that gives possessors of pot licenses legal footing to fight criminal charges when they possess more pot than the six-plant limit imposed by the amendment.

That issue is central to cultivation of marijuana charge that 54-year-old Thomas Nathaniel Sexton Jr. is facing in Pueblo district court. Tuenge testified at a hearing for Sexton before District Judge David Crockenberg.

Sexton's lawyer, Karl Tameler, was seeking suppression of statements Sexton made to investigators from the Pueblo County Sheriff's Department and sanctions against the district attorney's office for destruction of evidence. The sheriff's department raided Sexton's pot farm on Siloam Road in Beulah on Aug. 14, 2007. Prosecutors waited about a year to charge him. Investigators seized 128 pot plants on Sexton's property. He had posted a sign instructing law enforcement to contact Tuenge to verify the validity of his operation, but deputies and detectives who testified Thursday said it was largely ignored.

The sheriff's department pulled the plants, essentially rendering them useless, without following the protocol with the state to see if Sexton was approved to grow that many plants. Detectives also testified that they did not notify the judge who approved a search warrant for the property that Sexton claimed the farm was legitimate.

Former Pueblo County Deputy Chris Green, who previously spearheaded the Fremont County marijuana eradication project for two years and also participated in the Sexton raid, testified that if he had been in charge of the investigation he would have handled it differently, including delving into Sexton's claims of validity before destroying the farm.

Sexton's business, MediMar Ministries, caters to a clientele of patients suffering from a variety of ills, including cancer. Under the state's medical marijuana law, a possessor of a medicinal marijuana license can designate a caregiver to grow up to six plants - three that are mature and near harvest, and three in the seedling phase - in addition to the six plants that the patient can grow for themselves.

On the night of the raid, Sexton provided documen- tation of some of his patients, but not all of them. That prompted investigators to believe that he was growing more pot that the law allowed.

However, Tameler raised the issue of a provision to the law that allows physicians to prescribe more than the amount of plants specified in the constitutional amendment. Among some of Sexton's patient records were statements from doctors granting their patients extra plants.

Sexton's own medicinal marijuana prescription was presented as evidence Thursday. It entitles him to grow 60 plants for personal use.

Tuenge's testimony did little to affirm or to dash Tameler's contention that permission for additional plants can be granted by doctors.

“It does state in the law that a patient and a caregiver can go into court and explain why they have more than is medically allowed,” Tuenge said. “Some physicians might put an increased plant count on (prescriptions), but that doesn't allow our office to say that's OK.”

Judge Crockenberg will not allow statements made to deputies by Sexton before he was read his Miranda rights to be used. However, he ruled that other photographs entered into evidence would show the same things that were depicted in a series of photographs of Sexton's property that sheriff's deputies lost.

Tameler expects to file another motion with the court challenging the constitutionality of the search.


News Hawk- Ganjarden http://www.420Magazine.com
Source: The Pueblo Chieftain
Author: Patrick Malone
Contact: The Pueblo Chieftain
Copyright: 2009 The Pueblo Chieftain
Website:Case Tests Medical Pot Law