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Alaska Courts allow personal Marijuana in Home

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The Alaska Court of Appeals will not reconsider its August decision allowing adults to possess as much as a quarter-pound of marijuana in their home.

In an opinion released Friday, the court denied the Alaska attorney general's petition to rehear the case, which invalidated a 1990 voter initiative criminalizing all amounts of marijuana by calling the resulting ban on personal pot use in the home unconstitutional.

The court rejected all the assertions the attorney general's office made in arguing that the decision was flawed in the case of Noy v. State, which resulted in Attorney General Gregg Renkes instructing all state law enforcement agencies not to arrest or cite adults for personal marijuana use in their home.

Renkes has vowed since the day of the Noy decision that the state would appeal the case and try to restore its ability to prosecute citizens for possessing small amounts of marijuana in their home.

The Court of Appeals spent nearly all of the nine-page denial detailing reasons for rejecting the state's petition. The appeals court based the Noy decision on the landmark 1975 Alaska Supreme Court case Ravin v. State, which held that the government's interest in preventing possession of marijuana for personal use in the home was not great enough to violate the privacy clause contained in the state constitution.

The appeals court decision declared Ravin is still the law--and hence personal possession in the home is legal--despite the 1990 criminalization initiative. The appeals court judges determined that 4 ounces or less is the personal-use standard.

"In its petition for rehearing, the state argues that this (Court of Appeal's) initial opinion is flawed in some half-dozen ways, but most of the state's arguments ultimately rest on one underlying assertion: that we misunderstood the nature of the Alaska Supreme Court's decision in Ravin," wrote Judge David Mannheimer in Friday's opinion denying the rehearing.

Mannheimer then described the reasons the appeals court believes its interpretation of the Ravin decision, that is as a legal authority restricting the government from enacting laws prohibiting personal marijuana use in the home, was not flawed.

At one point, he wrote that the "state's proposed interpretation of the Ravin decision would seemingly put us on the road to legal chaos."

Despite what appeared to give all indications of a negative ruling for the state, the attorney general's office issued a press release Friday classifying the decision as at least a partial victory.

While the decision denied a rehearing, the release states, it did give the state permission to challenge the Ravin decision.

Dean Guaneli, chief assistant attorney general, said the office based this interpretation of the decision on the last sentence, which reads "the state remains free in the future to challenge the continuing vitality of Ravin."

The original Noy decision was ambiguous as to whether the state could challenge Ravin as an out-of-date legal authority, he said, and the last sentence clarifies that it can challenge the 28-year-old opinion.

He said the challenge would come in the form of a prosecutor at the trial-court level arguing to a judge that a defendant should not be able to use Ravin as a defense for marijuana possession because the opinion does not comply with today's standards and values.

A prosecutor would then likely have to present medical and scientific evidence about marijuana to try to sway the judge into not abiding by the Ravin decision, Guaneli said.

He added that the attorney general's office and Gov. Frank Murkowski consider marijuana a far more dangerous and prevalent drug than it was at the time of the Ravin opinion, which classified pot as "a relatively innocuous substance, at least as compared with other less-restricted substances."

However, Guaneli stopped short of saying that prosecutors and police would start prosecuting people again for personal marijuana use in the home in an effort to bring the debate into court.

"I don't believe that our instructions are going to be any different than they have been," he said, explaining the state has never put significant energy or resources into prosecuting small marijuana cases. "Neither we nor the police are going to open a floodgate of prosecutions."

The last sentence of Friday's appeals court decision does give them that option if the right case comes along, he said.

Bill Satterberg, the defense attorney who represented David Noy, said he was baffled by the state's classification of Friday's opinion as a victory.

The Court of Appeals took nine pages to articulate why it rejected the state's petition for a rehearing, a rarity for a court that usually issues a document stating only "granted" or "denied" in petition for rehearing cases, said Satterberg, who represented Noy after his 2001 arrest then took up the case on appeal for free.

He added that the state has always had the right to challenge Ravin and the last sentence of Friday's opinion did nothing to change that.

"What are they smoking down there in Juneau?" he said. "(Renkes) is the first guy I know to pull victory from defeat. Well, let me be the first to congratulate him on his resounding victory." "