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Providing Medical Marijuana To Other Caregivers Ruled Illegal

MedicalNeed

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Caregiver-to-caregiver transfers of medical marijuana - a practice widely used by some providers - is illegal under Montana's medical marijuana law" a judge in Missoula ruled this week.

The Medical Marijuana Act, passed by voter initiative in 2004, "particularly prohibits a caregiver from providing marijuana to anyone other than a qualifying patient who has registered that specific caregiver," District Judge John Larson wrote in an opinion issued Wednesday.

Larson's opinion backs up the Missoula County Attorney's Office, which issued a memo in August that such transactions run afoul of the law.

"We were hoping to stop them from doing that," said Chris Lindsey of Missoula, the attorney who pursued the case against Missoula County Attorney Fred Van Valkenburg on behalf of Missoula caregiver Kevin Kerr. Lindsey also is part of a similar suit filed two weeks ago in Flathead County.

The suits, said Lindsey, aimed to clarify what he called "a gray area" in the law, which specifies that a caregiver "signs a statement agreeing to provide marijuana only to qualifying patients who have named the applicant as caregiver."

The county attorney's stance that the provision outlaws all caregiver-to-caregivers sales or exchanges "creates an impossibility," according to Kerr's complaint.

Caregivers have to get plants from someplace, it said.

"Quite simply, a caregiver can never meet his duty in providing marijuana to his patient(s) if he is never able to come in possession of it," it said.

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But the county's response termed that argument a "straw man defense," and went on to say that the law "was not established to create a burgeoning industry with large-scale marijuana grow operations providing marijuana to multiple caregivers with no controls as to who eventually receives the product."

And it pointed out the fact that the Legislature is scrutinizing outright repeal of the law, or adding significant restrictions to it.

"Obviously repeal would make all of these debates moot," Deputy Missoula County Attorney Andrew Paul said Thursday.

As of Thursday, two medical marijuana bills remained viable in the Legislature. In addition to the repeal bill, a measure hastily amended on Wednesday would limit each provider to a single patient, unless related by blood or marriage. Then a provider could grow cannabis for three patients.

Under the present law, a caregiver can grow six plants per patient, with no limit on the number of patients.

"If the initiatives in the Legislature go nowhere and out of all of this we end up with the same law, this stuff" - that is, the issues raised by the lawsuits - "is going to be just critical," Lindsey said.

His Missoula County lawsuit argued that the vast majority of the caregivers in Montana have only a single patient. State Department of Health and Human Services records show that more than three-quarters of Montana's 4,848 registered caregivers have from one to five patients, while only 34 have more than 100.

Rick Rosio of CAPS MT (Cannabis Advocacy Patient Services of Montana) in Missoula is one of those.

"I'm down to a few hundred now," Rosio said. He also said he finally has the room to grow plants for all of them. However, he said, he once had to acquire plants from other caregivers so as to have enough cannabis for all of his patients.

"My rooms were designed for a smaller operation. We had so many sick people I didn't have a choice," he said.

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But just because caregivers adopted that practice didn't make it legal, the county attorney's office maintained.

"Perhaps if caregivers limited the number of patients for which they provide care, they would be able to responsibly manage that care with an uninterrupted supply of medical marijuana, ..." its response said. "Plaintiff's interpretation of the law is not based on patients' well-being but on caregivers' greed."

Lindsey said he hasn't filed suits in other counties, but that he might.

He's gotten pushback from some in the medical marijuana community about the suits, he said.

"They don't like the fact that if we get a negative ruling like we just did, we open the floodgates," he said.

He said his client is mulling his options about whether to appeal Larson's decision to the state Supreme Court, or whether to file another suit using a different theory.

"People obviously want medical marijuana," he said. The Legislature "can put roadblocks in. But we're going to see work-arounds ... I'd hate to think that after all this, we end up with an even grayer set of laws than we have now."


NewsHawk: MedicalNeed: 420 MAGAZINE
Author: GWEN FLORIO
Source: missoulian.com
Copyright: 2011 missoulian.com
Contact: missoulian.com
Website: Providing medical marijuana to other caregivers ruled illegal
 
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