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A 64-year-old Whitman County man with glaucoma is challenging not only his conviction for growing marijuana, but the validity of the Washington state law that has rendered him a felon.
Attorneys for Pullman motel owner Loren R. Hanson, whose case is pending in Washington state Court of Appeals for District 3, contends the law under which he was convicted "has been effectively repealed" by the 1998 medical marijuana initiative.
Hanson's attorneys also contend their client was denied a medical marijuana defense in the case that led to his conviction, and a penalty of $1,700 and 40 hours of community service.
Nine years after the passage of Initiative 692, many Washington patients for whom it is believed marijuana would be a help are not seeking or getting that help because of confusion over a state law the federal government continues to oppose.
"It sure would be nice if the sick patients could get their medication," said Hanson, who is allergic to other medications that relieve eye pressure, which causes blindness.
"I can't take any of the medications on the market," he said.
In summer 2004, after discussions with his doctor, Hanson began growing his own marijuana, which he took externally, allowing the smoke to waft around his face.
"The smoke just getting in my eyes relieves pressure and keeps me from losing eyesight," he said. Glaucoma is one of the few conditions specified in the medical marijuana law.
On Aug. 24, 2004, the Quad Cities Drug Task Force raided his business, the Manor Lodge Motel, while Hanson was away. Detectives found 34 mature plants, which they seized along with grow lights and other items used for cultivation.
The next day, Hanson obtained written authorization for medical marijuana from his doctor — who, coincidentally, also was the doctor of Whitman County Superior Court Judge David Frazier, who would hear Hanson's case.
Hanson then turned himself in to the Whitman County Sheriff's Office. Despite his doctor's letter, Hanson was charged with manufacturing marijuana, a felony.
Hanson's Spokane attorney, Frank Cikutovich, moved to have the case dismissed in November 2005, saying the state's medical marijuana law effectively repealed the drug law under which he was charged.
For marijuana to be an illegal Schedule I substance, Cikutovich argued, it cannot have a medical use. Yet by initiative, the people of Washington accepted that it does.
Whitman County Deputy Prosecutor Byron Bedirian was unavailable for comment Monday, but his arguments are spelled out in a brief filed with the appeals court.
Bedirian argued that the medical marijuana act states that it is not intended to supersede existing law.
In addition, Bedirian said, marijuana is controlled under Schedule I of the federal Controlled Substance Act.
Cikutovich said that should make no difference.
"Our argument is the state can determine what the schedule is, and by enacting medical marijuana, they're changing it," Cikutovich said. "It should not be considered a Schedule I drug."
Also at the November hearing, Frazier denied admission of Hanson's after-the-fact marijuana prescription from his doctor, effectively denying him a medical marijuana defense.
"He wouldn't allow us to present our defense," Cikutovich said of the judge.
Bedirian wrote that it wasn't the medical marijuana defense that was thrown out, but the evidence, "which had no bearing on the defendant's status at the time of the search warrant."
The defense contends that the medical marijuana law was intended to be a "compassionate law" interpreted leniently for the benefit of the patient.
Cikutovich's law partner, Patrick Stiley, wrote in an appeals court brief that the court "seemed to be laboring under the impression" that the law requires written documentation to be posted where the marijuana is growing.
"There was no discussion of the potential value" of Hanson's medical records, which show he is a "qualifying patient."
Bedirian wrote that when a criminal statute is clear, a "literal and strict interpretation must be given."
But Cikutovich contends there is nothing clear about the medical marijuana statute. In fact, he said, it is unclear on many different levels from "valid documentation" of a patient's right to use marijuana to what constitutes a legal 60-day supply of plants that are still growing.
"The law was intended to help people" like Hanson, not make him a felon, Cikutovich said.
Hanson's case was heard last week in Spokane by a panel of the State Appeals Court. Its decision is pending.
Source: The Spokesman-Review
Author: Kevin Graman
Copyright: 2007 The Spokesman-Review
Website: SpokesmanReview.com
Attorneys for Pullman motel owner Loren R. Hanson, whose case is pending in Washington state Court of Appeals for District 3, contends the law under which he was convicted "has been effectively repealed" by the 1998 medical marijuana initiative.
Hanson's attorneys also contend their client was denied a medical marijuana defense in the case that led to his conviction, and a penalty of $1,700 and 40 hours of community service.
Nine years after the passage of Initiative 692, many Washington patients for whom it is believed marijuana would be a help are not seeking or getting that help because of confusion over a state law the federal government continues to oppose.
"It sure would be nice if the sick patients could get their medication," said Hanson, who is allergic to other medications that relieve eye pressure, which causes blindness.
"I can't take any of the medications on the market," he said.
In summer 2004, after discussions with his doctor, Hanson began growing his own marijuana, which he took externally, allowing the smoke to waft around his face.
"The smoke just getting in my eyes relieves pressure and keeps me from losing eyesight," he said. Glaucoma is one of the few conditions specified in the medical marijuana law.
On Aug. 24, 2004, the Quad Cities Drug Task Force raided his business, the Manor Lodge Motel, while Hanson was away. Detectives found 34 mature plants, which they seized along with grow lights and other items used for cultivation.
The next day, Hanson obtained written authorization for medical marijuana from his doctor — who, coincidentally, also was the doctor of Whitman County Superior Court Judge David Frazier, who would hear Hanson's case.
Hanson then turned himself in to the Whitman County Sheriff's Office. Despite his doctor's letter, Hanson was charged with manufacturing marijuana, a felony.
Hanson's Spokane attorney, Frank Cikutovich, moved to have the case dismissed in November 2005, saying the state's medical marijuana law effectively repealed the drug law under which he was charged.
For marijuana to be an illegal Schedule I substance, Cikutovich argued, it cannot have a medical use. Yet by initiative, the people of Washington accepted that it does.
Whitman County Deputy Prosecutor Byron Bedirian was unavailable for comment Monday, but his arguments are spelled out in a brief filed with the appeals court.
Bedirian argued that the medical marijuana act states that it is not intended to supersede existing law.
In addition, Bedirian said, marijuana is controlled under Schedule I of the federal Controlled Substance Act.
Cikutovich said that should make no difference.
"Our argument is the state can determine what the schedule is, and by enacting medical marijuana, they're changing it," Cikutovich said. "It should not be considered a Schedule I drug."
Also at the November hearing, Frazier denied admission of Hanson's after-the-fact marijuana prescription from his doctor, effectively denying him a medical marijuana defense.
"He wouldn't allow us to present our defense," Cikutovich said of the judge.
Bedirian wrote that it wasn't the medical marijuana defense that was thrown out, but the evidence, "which had no bearing on the defendant's status at the time of the search warrant."
The defense contends that the medical marijuana law was intended to be a "compassionate law" interpreted leniently for the benefit of the patient.
Cikutovich's law partner, Patrick Stiley, wrote in an appeals court brief that the court "seemed to be laboring under the impression" that the law requires written documentation to be posted where the marijuana is growing.
"There was no discussion of the potential value" of Hanson's medical records, which show he is a "qualifying patient."
Bedirian wrote that when a criminal statute is clear, a "literal and strict interpretation must be given."
But Cikutovich contends there is nothing clear about the medical marijuana statute. In fact, he said, it is unclear on many different levels from "valid documentation" of a patient's right to use marijuana to what constitutes a legal 60-day supply of plants that are still growing.
"The law was intended to help people" like Hanson, not make him a felon, Cikutovich said.
Hanson's case was heard last week in Spokane by a panel of the State Appeals Court. Its decision is pending.
Source: The Spokesman-Review
Author: Kevin Graman
Copyright: 2007 The Spokesman-Review
Website: SpokesmanReview.com
