ACTIVIST FIGHTING FELONY DRUG CHARGES

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The420Guy

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Pubdate: Mon, 28 Aug 2000
Source: Long Beach Press-Telegram (CA)
Copyright: 2000 Press-Telegram.
Contact: crutch@ptconnect.infi.net

Author: Wendy Thomas Russell

ACTIVIST FIGHTING FELONY DRUG CHARGES

LONG BEACH When narcotics police raided David Zink's Long Beach home two weeks
ago, the brazen homeowner led officers straight to his marijuana garden.

Zink openly admitted that he grew cannabis. He also admitted that he picked it, dried it and
smoked it.

But he didn't admit to breaking the law. And the 55-year-old medicinal-marijuana activist
vows he never will.

Facing three felony charges and up to eight years in prison, Zink's case is widely viewed as
Long Beach's first true test of Proposition 215, a 1996 state law allowing chronically ill
patients or their caregivers the right to cultivate and possess marijuana with a doctor's
prescription.

The marijuana garden at issue consisted of 30 plants, 3 feet to 7 feet high, and was the
nucleus of what Zink describes as a three-man co-op. He says he and two friends, each with
serious and painful illnesses, were growing a year's worth of cannabis for their own use.

Zink's disability, he says, is caused by severe arthritis as well as nerve damage to his left leg,
knee and hip as a result of industrial accidents. One of his friends has epilepsy and a
degenerative disease. The other has cancer.

Zink said all three had doctors' notes, copies of the law and clear consciences when the Long
Beach Police Department knocked on his door Aug. 10.

Officers dug up the plants and carted Zink off to the police station, leaving his "growing
partners" behind. Zink initially was held on $500,000 bail but later released on his own
recognizance.

Today, Zink faces a preliminary hearing in Long Beach Superior Court. He says he is
confident that the case will be disposed of quickly and he's determined to change the way
Long Beach deals with Prop 215 cases.

"Mark my words," Zink commands, "What we will get out of this is an ordinance in Long
Beach."

Prosecutors are equally as confident in his guilt.

Under the law, there are only two ways to grow marijuana legally: to be a patient with a
doctor's note, or to be a primary caregiver to patients with doctors' notes. A caregiver is
defined as someone who provides all care, not just medical marijuana, to a patient.

Zink may be a patient, says Long Beach Deputy District Attorney Karen Thorpe, but he's
nobody's caregiver.

"In this case," Thorpe says, "the defendant had far in excess of what an expert would say
would be used for his personal use."

Andrea Baous, a Long Beach prosector with a background in narcotics cases, stresses there's
no section in the law allowing patients to grow for others in a "co-op" situation.

"We support the law in all respects," Baous says. "If anybody has a legitimate medical
purpose for using it, of course they would fall under the law and we would not be
prosecuting. But (there are) circumstances where we feel people are using it as a ruse or a
smoke screen to circumvent the law."

Chance to be lawful

To Bill Britt, one of Zink's growing partners and an active Long Beach spokesman for
disabled people, the case is a travesty of justice.

Britt suffers from epilepsy and what he terms post-polio syndrome, which causes a series of
deteriorating ailments. He says his epilepsy medication results in loss of sleep, lack of appetite
and muscle twitching, all of which cannabis can counter almost instantly. The plant also helps
counter his depression and dulls his pain without numbing his body entirely, he says.

When Prop 215 was passed four years ago, Britt says, he thought people like he could relax.
They were no longer breaking the law. They didn't have to purchase pot from questionable
sellers on the streets.

"I thought it was my chance to no longer live my life as a criminal," Britt says. "It's just so
sad that there's this law and we're still living in fear."

But the issue is at a boiling point.

Opponents maintain that the law is merely a back-door route to legalizing marijuana for all.
And the federal government still considers possession a crime, regardless of illness.

What governments do

Some California counties have taken active roles in crafting Prop 215 to fit community
standards. And Attorney General Bill Lockyer so far has taken a hands-off role, letting local
authorities call the shots.

Last month, San Francisco District Attorney Terence Hallinan announced that ID cards
entitling people to use medical marijuana would be sold for $25 and a doctor's note.

Meanwhile, the Oakland City Council approved a policy letting medical-marijuana users stock
a three-month supply of the drug.

But most jurisdictions, including Long Beach, have less defined policies on how to implement
Prop 215.

Long Beach City Prosecutor Thomas Reeves, who handles misdemeanor drug cases,
acknowledges that medicinal-marijuana use is a gray area in the law, and is made even
murkier by the fact that "the feds are 100 percent against it."

"We all rely on federal grants," Reeves says. "Nobody wants to put that at risk. On the other
hand, nobody wants to ignore the will of the people, so to speak."

For now, prosecutors and police here seem to promote a "case-by-case" management theory.

"I'm not going to make it a criminal offense," says Reeves of medicinal marijuana. "But I'm
going to make (users) prove it because otherwise I'm going to see every bogus, lame excuse in
the world."

Busted

Says Britt: "What that means is they arrest you case by case and let the courts sort it out."

Actually, that's not far from the truth.

LBPD Sgt. Steve Filippini says doctors' notes can't be verified on the spot, and simple
possession of marijuana is still probable cause for arrest.

"We'll get a hold of your doctor," Filippini says. "But, right now, you're under arrest."

He adds of the Zink case: "It wasn't like the guy had a couple baggies of marijuana ... and a
prescription sitting next to it."

Filippini concedes that there may be room for more training on Prop 215 if the Zink case
proves that police and prosecutors erred.

"If it turns out that everything Zink said was true," Filippini says, "of course, we as a police
department don't want to put innocent people in jail. So maybe we would hold a training
course on this."

Number crunching

But there are still plenty of issues to sort out before a judge.

Police estimate that each of Zink's female plants, the only ones capable of sprouting buds,
would yield an average of two and a half pounds of usable marijuana, says prosecutor
Thorpe. If all 30 plants are females, Zink could have yielded up to 75 pounds of cannabis,
she says.

Police have said that amount could be worth between $75,000 and $100,000 on the street.

THC charge

Furthermore, Thorpe says, possession of marijuana is not the only charge pending against
Zink. Also found in Zink's home was equipment used to make concentrated
tetrahydrocannabinol, or THC, a hallucinogenic chemical and the most active ingredient in
marijuana.

For that, Zink is charged with one count of manufacturing a controlled substance.

"There is no 215 defense for (THC)," says John Harlan, the prosecutor handling Zink's
preliminary hearing.

Zink counters the allegations one by one.

First, he says, he and his friends didn't know how many of the plants would be female when
they planted the cannabis seeds, and still don't. The actual amount, therefore, is difficult if
not impossible to determine.

Second, Zink says that his friends could not grow the plants at their homes but cared for them
as much as he did.

"I wasn't a caregiver," he says. "I never called myself a caregiver, nor did they consider me
their caregiver."

And, finally, Zink says, he was simply trying to come up with an edible form of marijuana
with the THC-extraction equipment. "I don't like to smoke," he says.

At the least, the Zink case promises to define more clearly the distinction, if any, between
caregiver and co-op. Zink says his hopes are set even higher: that the case will firm up a
relatively squishy law.

"I don't want an us-versus-them situation," he says of pot users and police. "They are my
police officers too, and I want them to be relieved of this horrible burden of the defining the
law."
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