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County, Medical Marijuana Users Head To Showdown


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The people have approved it. Government has struggled with it. And this week, the county of San Diego will mount an attack to overturn it.

It is California's 10-year-old, voter-approved "Compassionate Use Act," the law that says seriously ill people should be able to use marijuana to ease their pain and suffering.

On Thursday, a Superior Court judge will weigh a San Diego County lawsuit filed nearly a year ago that seeks to overturn the law on the grounds that California's voter-approved law should be pre-empted by federal law, which says all marijuana use is illegal.

San Diego County supervisors, in a move that angered medical marijuana patients and advocacy groups, and led by Supervisors Bill Horn, Dianne Jacob and Pam Slater-Price, voted to file suit to overturn the Compassionate Use Act in December.

Medical marijuana supporters say the drug can help a host of patients by easing pain and stimulating appetites to battle malnourishment for chronically ill persons.

Opponents say even if marijuana has some medicinal value, it is still a dangerous drug and California's law could lead to drug abuse.

State officials who will defend the law in court said they are confident that they will prevail, and that the county's challenge is old-hat, legally speaking, and will probably rejected. But county officials said last week that they, too, were confident.

Caught in the middle of the legal tussle are thousands of people who say they are sick or hurt, and that marijuana is the only drug that can help them cope.

"I can't believe I'm having to go through this all over again," Craig McClain, a Vista resident, business owner, husband, father and spinal-cord injury victim, said recently. "I feel like my vote never counted. They don't understand my pain."

Meanwhile, both supporters and opponents of the Compassionate Use Act say the county challenge is the most direct attack ever launched on the law. While it has been challenged in court before, no one has ever tried to get the law overthrown.

And, supporters and opponents say that the court decision handed down could also affect medical marijuana laws approved by voters in 10 other states.


Even though 55 percent of California's voters approved Proposition 215, the Compassionate Use Act, in 1996, it's still largely a law in limbo.

The federal government has challenged it in court, although it has never tried to completely overturn it. And state and local governments have done little to implement it.

Prop. 215 was relatively short and simple as state ballot measures go.

It said "seriously ill" people ---- people with cancer, anorexia, AIDS, spasticity, glaucoma, arthritis, migraines or other chronic illnesses ---- had a legal right to obtain or grow, and use marijuana for medical purposes when recommended by a doctor.

The law also mandated that doctors not be punished for recommending the drug. And it said the federal and state governments should work together "to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need."

But a month after Prop. 215 was passed, the Clinton administration announced that doctors who recommended marijuana would lose their federal licenses and could be prosecuted criminally by federal prosecutors.

The Bush administration continued that threat after President Clinton left office. However, it was eventually ruled illegal by a federal appeals court in 2002. But, the Bush administration has continued its aggressive stance toward California's law, and federal agents have raided dispensaries and carried out arrests.

State resistance

Meanwhile, Prop. 215 has faced threats from within the state. If backers of the law thought the measure would give medical marijuana patients blanket protection from being arrested by state law enforcement officers, they were wrong.

Just days after Prop. 215 was passed, then-California Attorney General Dan Lungren issued a release to all law enforcement officers in the state. Lungren opposed the law, and actually wrote part of the ballot argument against Prop. 215. The release said that state law enforcement officers could still arrest people found growing, or in possession of, marijuana ---- even if they claimed to be medical marijuana patients.

Lungren said Prop. 215 only gave medical marijuana patients an "affirmative defense" if they were arrested.

"He was basically saying, 'Arrest them and ask questions later,' " William Dolphin, a spokesman for Americans for Safe Access, a medical marijuana advocacy group, said last week.

Current state Attorney General Bill Lockyer has been more empathetic to the medical marijuana issue. However, officials from his office said last week that the state's official position remains that Prop. 215 only offers medical marijuana patients an "affirmative defense" in court ---- and that they can still be arrested by state law enforcement officers.

Dolphin, however, said that the aggressiveness of law enforcement officials around the state has eased. Just last year, the California Highway Patrol reached a court settlement with Americans for Safe Access for Highway Patrol officers to consider medical marijuana identification cards, or notes from doctors, when they discover patients with marijuana.

Still up in the air

However, a fundamental part of the Prop. 215 saga is still up in the air. The 1996 law urged state and federal legislators to find a way to safely and affordably dispense medical marijuana to patients who need it.

That hasn't really happened. Medical marijuana dispensaries have opened ---- and closed ---- around the state. But lawmakers never really came up with a dispensary plan.

In 2003, state legislators punted the issue over to local governments. Lawmakers passed Senate Bill 420, which directed counties to create medical marijuana registries and to issue identification cards. The law, which took effect in 2004, also stipulated how much marijuana patients and caregivers could actually possess. The basic idea was that the cards would make it easier for law enforcement officials and medical marijuana patients.

Peace officers would be able to tell who the legitimate medical marijuana patients were by checking identification cards. And patients would have a way to prove that they were legitimately using the drug.

San Diego County

But that's where San Diego County supervisors ---- who formally opposed Prop. 215 when it was placed on the ballot in 1996 ---- drew their line in the sand.

In November 2005, a torn Board of Supervisors voted 3-2 to defy SB 420, and refuse to create the county's medical marijuana registry and ID card program.

The board's majority, Horn, Jacob and Slater-Price, said complying with the state's order would tell children that marijuana was OK and lead to increased drug abuse.

A month later, the board voted 4-0 in closed session, with Supervisor Ron Roberts absent, to sue to overturn Prop. 215 itself.

Meanwhile, over the last year, the county district attorney's office has adopted the supervisors' aggressive stance toward the law. Over the summer, local law enforcement officials helped federal drug enforcement officials crack down on, and "essentially shut down," all local medical marijuana dispensaries.

McClain, whose spine was crushed several years ago in a construction-related accident, and who has used marijuana for years to ease the chronic severe spasms the injury created, said the crackdown has been tough on patients.

"I've been using Marinol (synthetic marijuana) more, but without results," he said Friday. "A lot of people are suffering. It (Marinol) surely doesn't work like God's creation. And it's expensive. They're $15 a pill."

Interestingly, the county's lawsuit asks the court to overturn every facet of Prop. 215 and SB 420 with one exception ---- the section of Prop. 215 that says that it is legal in California for an individual patient or caregiver to possess or cultivate marijuana.

However, that appears to be a legal maneuver. Officials from the state attorney general's office said no judge would overturn that section because states are given the absolute right to create their own laws recognizing the legality of a drug. However, they and county lawyers said the county's lawsuit would gut the actual mechanisms that make Prop. 215 viable. If successful, the only marijuana that would be legal would essentially be "miracle marijuana" ---- nobody grew it, or dispensed it, one observer said.

Ironically, the county's pending lawsuit ---- or the ruling that could come Thursday ---- could possibly make it easier for medical marijuana patients.

If the judge rules against the county, it would seem that supervisors would then have no choice but to institute the identification card program, and ease off on dispensaries.

However, the county could win its case ---- and throw the medical marijuana issue into a whole new world of doubt in California and around the country.

But the more likely situation, officials said, is that Thursday is just the first shot in a longer battle. Any judgment is likely to be appealed. And many feel that it's very likely that the Supreme Court will end up being the final arbiter.

Newshawk: User - 420 Magazine
Source: North County Times
Pubdate: 12 November 2006
Author: Gig Conaughton
Copyright: 2006 North County Times
Contact: gconaughton@nctimes.com
Website: County, medical marijuana users head to showdown North County Times - North San Diego and Southwest Riverside County News
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