T
The420Guy
Guest
The fate of an argument that the Alaska Constitution gives adults the right
to possess small amounts of marijuana in their homes could be decided by a
local case being considered by the Alaska Court of Appeals.
A lawyer for a North Pole man convicted in 2001 of possessing marijuana in
his home has appealed the conviction based on a claim that a nearly
three-decade-old Alaska Supreme Court decision declaring personal pot
possession a state constitutional right is still the law.
The Court of Appeals' decision will represent the first time a
precedent-setting court decides whether a 1975 Supreme Court ruling still
protects marijuana possession for personal use in the home despite a 1990
voter initiative that criminalized possession of any amount of the drug in
any location, said Bill Satterberg, the defense attorney who submitted the
appeal.
Satterberg's argument, which the appeals court is expected to rule on any
time, is based on the assertion that voters did not have authority to cancel
a state constitutional right when they passed the initiative, making the
Supreme Court's decision still valid.
The Supreme Court ruled in the controversial case of Ravin v. State that
marijuana possession for personal use by an adult in their home was a
fundamental constitutional right to privacy.
Since the 1990 voter initiative that criminalized personal possession of
marijuana, several Alaska lawyers and defendants have cited the Ravin case
in an effort to have marijuana charges dismissed.
While the argument has worked in at least two instances--once in a 1993
Ketchikan case and most recently in a June decision by a Fairbanks judge--a
court with the authority to set precedent has never addressed the apparent
conflict between the Ravin decision and the marijuana laws enacted following
the criminalization initiative, Satterberg said.
Noy Case
The case before the Alaska Court of Appeals, he said, could produce the
decision that clarifies the issue. The case started when North Pole police
and drug agents arrested David Noy, 41, at his Parkway Road house in North
Pole on July 27, 2001.
Although testimony recorded on trial transcripts reveals somewhat differing
accounts of the arrest, several witnesses said that law enforcement
responded to the house after North Pole Police Sgt. Mark Jurgens was on
patrol and reported smelling marijuana coming from the residence, where Noy
and a group of people were outside barbecuing salmon.
After a long encounter about whether Noy would let officers into his house,
North Pole police and drug agents who responded searched the residence and
found five live pot plants, growing equipment, some loose marijuana and
paraphernalia, according to testimony and court documents.
A jury convicted Noy of one count of sixth-degree misconduct involving a
controlled substance, a misdemeanor charge of possessing less than eight
ounces of marijuana. Eight ounces or pot or less is defined in Alaska law as
an amount for personal use, while anything more than eight ounces is defined
as an intent to deliver.
Although Noy's sentence amounted to a proverbial slap on the
wrist--community service, a small surcharge and a suspended jail
term--Satterberg appealed the conviction.
He filed his last briefing with the Court of Appeals late last year and said
he expects a decision soon because the three judges who make up the court
usually take about six months to render a decision.
Case Trilogy
Satterberg called the Noy case the "second in a trilogy" of marijuana cases
he has argued relying primarily on the Ravin issue.
The latest case involved Scott A. Thomas, 42, a Fairbanks man who was
convicted by a jury of a sixth-degree misconduct involving a controlled
substance charge after officers allegedly found marijuana plants growing in
his home.
After the trial, Fairbanks Superior Court Judge Richard Savell approved
Satterberg's motion for dismissal in June, writing under his signature of
approval that Ravin governs.
While Savell's decision attracted significant local media attention,
Satterberg said it did little to address the question of whether a portion
of Alaska's marijuana laws are unconstitutional, considering prosecutors are
unlikely to appeal the ruling and send it to a higher court with the
possibility of setting precedent.
He said that prosecutors' reluctance to appeal lower judges' decisions
upholding Ravin is one reason the issue has yet to be finalized. Also, many
defendants will often accept the relatively light sentence that comes with a
misdemeanor pot conviction and not pursue the matter any further, he said.
Satterberg said he was actually pleased when Fairbanks District Court Judge
Jane Kauvar rejected his motion for dismissal in the Noy case, providing him
with an opportunity to bring the Ravin issue before the Court of Appeals.
"If Judge Kauvar would have dismissed, that would have been the end of it,"
Satterberg said. "You'll never see these (dismissals) get appealed" by state
prosecutors.
Satterberg has added a notification of Judge Savell's recent decision in the
Thomas case to the pending appeal in the Noy case.
"Basically, we just called their attention to the fact that they have this
problem to deal with," he said.
"Noy is actually the big one, the Thomas case basically just reiterated the
points of the Noy case."
Past Ruling
Satterberg said a 1999 Court of Appeals decision made in one of his
marijuana cases offered him encouragement for what the court's ruling might
be in the Noy case.
In the 1999 ruling made in Walker v. State, the appeals court decided that
Satterberg's Ravin argument was not pertinent, considering the defendant was
convicted of possessing more than eight ounces of marijuana, which is more
than what's considered a personal use amount.
However, Satterberg said the judges hinted in the opinion that they would
enforce the Ravin decision.
"A 1990 initiative enacted current (law) which criminalizes possession of
less than one half pound of marijuana. The constitutionality of this statute
is questionable because it appears to conflict with Ravin, a decision of the
Alaska Supreme Court which we are bound to follow," reads a portion of the
Walker decision.
Besides the Ravin issue, Satterberg also included in the Noy appeal a claim
that the defendant had a right to use marijuana as a medical remedy for back
pain even though he did not have a prescription. Satterberg said that even
though Alaskans have a right to use medical marijuana when prescribed, most
people who might use the drug for medical reasons will never be able to
obtain a prescription because doctors are afraid they will lose their
license if they prescribe the drug.
In the Noy appeal, Satterberg is arguing that the defendant had a medical
necessity to use marijuana.
Although Satterberg said he hopes for a favorable ruling from the Court of
Appeals, he will petition the Alaska Supreme Court to hear the case if the
appeals court rejects his argument.
Pubdate: Sun, 20 Jul 2003
Source: Fairbanks Daily News-Miner (AK)
Copyright: 2003 Fairbanks Publishing Company, Inc.
Contact: letters@newsminer.com
Website: newsminer.com | The voice of Interior Alaska
to possess small amounts of marijuana in their homes could be decided by a
local case being considered by the Alaska Court of Appeals.
A lawyer for a North Pole man convicted in 2001 of possessing marijuana in
his home has appealed the conviction based on a claim that a nearly
three-decade-old Alaska Supreme Court decision declaring personal pot
possession a state constitutional right is still the law.
The Court of Appeals' decision will represent the first time a
precedent-setting court decides whether a 1975 Supreme Court ruling still
protects marijuana possession for personal use in the home despite a 1990
voter initiative that criminalized possession of any amount of the drug in
any location, said Bill Satterberg, the defense attorney who submitted the
appeal.
Satterberg's argument, which the appeals court is expected to rule on any
time, is based on the assertion that voters did not have authority to cancel
a state constitutional right when they passed the initiative, making the
Supreme Court's decision still valid.
The Supreme Court ruled in the controversial case of Ravin v. State that
marijuana possession for personal use by an adult in their home was a
fundamental constitutional right to privacy.
Since the 1990 voter initiative that criminalized personal possession of
marijuana, several Alaska lawyers and defendants have cited the Ravin case
in an effort to have marijuana charges dismissed.
While the argument has worked in at least two instances--once in a 1993
Ketchikan case and most recently in a June decision by a Fairbanks judge--a
court with the authority to set precedent has never addressed the apparent
conflict between the Ravin decision and the marijuana laws enacted following
the criminalization initiative, Satterberg said.
Noy Case
The case before the Alaska Court of Appeals, he said, could produce the
decision that clarifies the issue. The case started when North Pole police
and drug agents arrested David Noy, 41, at his Parkway Road house in North
Pole on July 27, 2001.
Although testimony recorded on trial transcripts reveals somewhat differing
accounts of the arrest, several witnesses said that law enforcement
responded to the house after North Pole Police Sgt. Mark Jurgens was on
patrol and reported smelling marijuana coming from the residence, where Noy
and a group of people were outside barbecuing salmon.
After a long encounter about whether Noy would let officers into his house,
North Pole police and drug agents who responded searched the residence and
found five live pot plants, growing equipment, some loose marijuana and
paraphernalia, according to testimony and court documents.
A jury convicted Noy of one count of sixth-degree misconduct involving a
controlled substance, a misdemeanor charge of possessing less than eight
ounces of marijuana. Eight ounces or pot or less is defined in Alaska law as
an amount for personal use, while anything more than eight ounces is defined
as an intent to deliver.
Although Noy's sentence amounted to a proverbial slap on the
wrist--community service, a small surcharge and a suspended jail
term--Satterberg appealed the conviction.
He filed his last briefing with the Court of Appeals late last year and said
he expects a decision soon because the three judges who make up the court
usually take about six months to render a decision.
Case Trilogy
Satterberg called the Noy case the "second in a trilogy" of marijuana cases
he has argued relying primarily on the Ravin issue.
The latest case involved Scott A. Thomas, 42, a Fairbanks man who was
convicted by a jury of a sixth-degree misconduct involving a controlled
substance charge after officers allegedly found marijuana plants growing in
his home.
After the trial, Fairbanks Superior Court Judge Richard Savell approved
Satterberg's motion for dismissal in June, writing under his signature of
approval that Ravin governs.
While Savell's decision attracted significant local media attention,
Satterberg said it did little to address the question of whether a portion
of Alaska's marijuana laws are unconstitutional, considering prosecutors are
unlikely to appeal the ruling and send it to a higher court with the
possibility of setting precedent.
He said that prosecutors' reluctance to appeal lower judges' decisions
upholding Ravin is one reason the issue has yet to be finalized. Also, many
defendants will often accept the relatively light sentence that comes with a
misdemeanor pot conviction and not pursue the matter any further, he said.
Satterberg said he was actually pleased when Fairbanks District Court Judge
Jane Kauvar rejected his motion for dismissal in the Noy case, providing him
with an opportunity to bring the Ravin issue before the Court of Appeals.
"If Judge Kauvar would have dismissed, that would have been the end of it,"
Satterberg said. "You'll never see these (dismissals) get appealed" by state
prosecutors.
Satterberg has added a notification of Judge Savell's recent decision in the
Thomas case to the pending appeal in the Noy case.
"Basically, we just called their attention to the fact that they have this
problem to deal with," he said.
"Noy is actually the big one, the Thomas case basically just reiterated the
points of the Noy case."
Past Ruling
Satterberg said a 1999 Court of Appeals decision made in one of his
marijuana cases offered him encouragement for what the court's ruling might
be in the Noy case.
In the 1999 ruling made in Walker v. State, the appeals court decided that
Satterberg's Ravin argument was not pertinent, considering the defendant was
convicted of possessing more than eight ounces of marijuana, which is more
than what's considered a personal use amount.
However, Satterberg said the judges hinted in the opinion that they would
enforce the Ravin decision.
"A 1990 initiative enacted current (law) which criminalizes possession of
less than one half pound of marijuana. The constitutionality of this statute
is questionable because it appears to conflict with Ravin, a decision of the
Alaska Supreme Court which we are bound to follow," reads a portion of the
Walker decision.
Besides the Ravin issue, Satterberg also included in the Noy appeal a claim
that the defendant had a right to use marijuana as a medical remedy for back
pain even though he did not have a prescription. Satterberg said that even
though Alaskans have a right to use medical marijuana when prescribed, most
people who might use the drug for medical reasons will never be able to
obtain a prescription because doctors are afraid they will lose their
license if they prescribe the drug.
In the Noy appeal, Satterberg is arguing that the defendant had a medical
necessity to use marijuana.
Although Satterberg said he hopes for a favorable ruling from the Court of
Appeals, he will petition the Alaska Supreme Court to hear the case if the
appeals court rejects his argument.
Pubdate: Sun, 20 Jul 2003
Source: Fairbanks Daily News-Miner (AK)
Copyright: 2003 Fairbanks Publishing Company, Inc.
Contact: letters@newsminer.com
Website: newsminer.com | The voice of Interior Alaska
