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Medical Marijuana Users Wait to Exhale

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May 18,00
Vague law leave patient, doctors, officials in fog (Spokane.net)
Washington's 11/2-year-old medical marijuana law is intended to relieve pain, but it is causing headaches for courts throughout the Inland Northwest. Voters left a lot of questions unanswered when they passed Initiative 692 in November 1998.
The law says simply that, with a physician's approval, a person may have a 60-day supply of marijuana to treat "chemotherapy-related nausea and vomiting in cancer patients; AIDS wasting syndrome; severe muscle spasms associated with multiple sclerosis and other spasticity disorders; epilepsy; acute or chronic glaucoma; and some forms of intractable pain."
The law implies patients may buy marijuana on the street and says they may grow their own or have a "caregiver" grow it for them. But it doesn't say how much a 60-day supply is.
Police, prosecutors, judges and patients are struggling -- so far with little success -- to answer that question.
Unable to afford expert medical testimony on how much marijuana is enough to treat certain medical conditions, a couple of Stevens County residents have settled for plea bargains.
There also is a problem of overlapping jurisdictions. A Ferry County resident got the prosecutor's blessing to smoke the marijuana his doctor had recommended but was arrested anyway in March on federal charges. What seemed like a reasonable amount of medical marijuana to Prosecutor Steve Graham seemed excessive to Sheriff Pete Warner.
Rebuffed by Graham, Warner resorted to federal law, which makes no exception for medical use of marijuana. Fortunately for defendant Aaron Ash, 27, who has chronic neck pain and headaches, the U.S. attorney's office declined to prosecute the case.
Colville Tribal Judge Steven Aycock faced an even more unusual jurisdictional dilemma last week when he sentenced Nespelem resident Denise Ives, who suffers from a painful constipating condition known as irritable bowel syndrome. Colville tribal law, like federal law, doesn't allow the medical use of marijuana.
Aycock went about as far as he could to accommodate Ives, but he wound up about 15 miles short -- the distance to the reservation boundary.
He could have sentenced Ives to a year in jail and a $5,000 fine for each of her guilty pleas, to possessing less than 40 grams of marijuana and possessing drug paraphernalia. But he settled for 20 hours of community service.
Also, Aycock didn't forbid Ives from using marijuana while on probation. And if Ives successfully completes a year of probation, she may withdraw her guilty plea and have her previously unblemished record restored.
But the tribal judge told Ives she must drive about 15 miles to Coulee Dam, just outside the Colville Reservation, to exercise her untested state right to smoke marijuana.
"If and when the (tribal) council would approve a medical marijuana ordinance, we will revisit that part of the order," Aycock told Ives.
Ives is caught in a narrow intersection of tribal, state and federal law. As a Washington citizen, Ives was eligible to vote on Initiative 692. But it doesn't apply to her as long as she is on the Colville Reservation -- even though she is not a Colville tribal member.
Federal law says tribal law applies to all recognized American Indians, no matter what tribe they're enrolled in. Ives is a Duwamish Indian, enrolled in the Suquamish tribe.
Moving off the Colville Reservation is not an option. Ives' husband, James, is a Colville tribal member, and Nespelem is their home.
"The court had to say what it said," Ives said. "That's the law. I respect that."
But she said driving across the Columbia River bridge at the edge of the reservation several times a day to smoke her medical marijuana is "barely doable."
"I just want to have the same rights over here (on the reservation) that I have on the other side of the bridge," Ives said. "I'm the same person."
While Colville tribal prosecutor David Ward had no objection to Ives' relatively light sentence, there is no guarantee she won't have new trouble with Okanogan or Grant county prosecutors when she crosses the bridge.
There's also no guarantee that Aycock won't impose additional conditions on Ives' sentence. He ordered her to undergo a drug and alcohol evaluation to make sure she's not abusing marijuana or other drugs.
"I want to make sure there is not something going on that we're missing and not dealing with here," Aycock said.
Ives' attorney, Wayne Svaren of Grand Coulee, said he fears the counselors who perform drug evaluations are predisposed to say any use of a controlled substance is abuse. He vowed to appeal any finding of abuse.
Meanwhile, Svaren said he will ask the fledgling Colville Tribal Bar Association to join him in urging the tribal council to authorize medical use of marijuana.
"We hope the council will recognize the conflict that some of their citizens are put in," he said.
Ives' case was supported by testimony from Seattle psychiatrist Francis Podrebarac, who said the irritable bowel syndrome she suffers from is one of the "spastic muscle conditions" contemplated by Initiative 692.
Aycock expressed concern that Ives didn't consult Podrebarac until after she was arrested, but other medical marijuana defendants in northeastern Washington mostly have been unable to present any expert testimony.
Spokane attorney Frank Cikutovich said his Stevens County medical marijuana clients have accepted plea bargains at least in part because they couldn't afford to present medical testimony.
One of them, Arthur "Ocean Israel" Shepherd, was unable to show that the 30 mature plants he grew last year weren't more than a 60-day supply for the Colville medical marijuana patient for whom he was a "caregiver."
The other, AIDS patient Cecil Lotief, pleaded guilty to growing 40 marijuana plants last year. Lotief, 28, will ask for leniency when he is sentenced Friday under a plea bargain that will allow him to continue using the drug if he complies with Initiative 692's 60-day supply limit.
The problem is that no one knows how much that is.
Denise Ives of Nespelem must leave Colville reservation to use marijuana.

Nespelem, Wash.
By John Craig - The Spokesman-Review
Copyright: Spokane.net