From the San Diego Union-Tribune
Blog of Greg Moran
More from the medical marijuana front
By Greg Moran
Thursday, November 19, 2009 at 6:44 p.m.
In 2006, San Diego police found 98 marijuana plants and 1.7 pounds of dried herb in Nathaniel Archer's home. Archer was a medical marijuana patient (chronic pain from a construction accident)who said he was growing for himself as well as four others. Didn't go over with a jury, which convicted him of both counts. But on Tuesday the 4th District Court of Appeal in San Diego reversed part of that verdict in a ruling that Archer's lawyer said could have broad application for how medical marijuana cases in the future.
Some background, first. Voters passed Proposition 215 in 1996, allowing medical uses for pot. in 2003, the legislature passed something called the Medical Marijuana Program Act (MMPA), which among other things set out numerical limits on how much pot one could legally possess, for medicinal purposes only, as they say. The limits were 12 immature plants, six mature plants, and eight ounces of gage. In Archer's trial Superior Court Judge Kerry Wells used those numerical limits to instruct juries on both the cultivation charge, and possession.
But in the decision penned by Justice Patricia Benke, that's a no-no. Why? Well, the state constitution does not allow the legislature to amend voter initiatives, unless the initiative itself expressly allows it. Prop 215 (not surprisingly) did not open that door for legislators. What's interesting is that the Attorney General, handling the appeal, conceded that the numerical limits of the MMPA are unconstitutional.
That might not be as big a thing as it sounds. The state Supreme Court has a case in front if it dealing with the same issue, and most expect the court to come to the same conclusion. So maybe the 4th is a bit ahead of the curve here.
But Russell Babcock, the attorney for Archer, said the decision also means that the determination of how much marijuana is enough (for medicinal purposes only) will now be largely left up to jurors. That's because Benke said with the numerical limits portion of the law inapplicable, the only guideline comes from another section which said the amount of marijuana that could be possessed was whatever was enough for the "personal medical use" of the patient. Courts have interpreted that to mean whatever is "reasonably related" to the patent's medical needs. Archer went through about a half-pound of marijuana per month (!!!!), according to testimony at the trial. But there was no evidence that he used that for anything other than his personal medical needs, and whether or not that amount is reasonable is a question of fact that juries should decide.
"This has real ramifications," Babcock said. "It becomes a case by case basis for juries of reasonableness."
Archer's cultivation conviction stands, because he failed to qualify as a caregiver under the new standards the state Supreme Court articulated in the Mentch case last year. (Two medical marijuana patients testified at trial that Archer was their caregiver, and he said he was growing for two others who he didn't identify). But the possession conviction is gone. And it also means that prosecutions based simply on the number of plants are probably a thing of the past, at least according to Babcock.http://www.signonsandiego.com/news/2009/nov/19/more-medical-marijuana-front/I don't quite get all the legal mind-bending going on here but it sounds like instead of quantifying the guidelines, this leaves the interpretation wide open on how much is "reasonable". Is this going to spawn a whole new branch of consulting firms? Well - we do need jobs....
Good grief.
-JB
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