Morro caregiver fights marijuana charge

February 07, 2005

Leslie Griffy , The Tribune

When Morro Bay police investigated an unfounded report of a woman in distress on Driftwood Avenue, they didn't expect to find 75 marijuana plants.

The Sept. 1, 2004, discovery led the District Attorney's Office to charge Robert Marshall with cultivation of marijuana, a felony.

Marshall and his attorney don't dispute he was growing the illegal drug, but they argue police were wrong to arrest him.

Two medical marijuana patients designated Marshall as their primary caregiver.

Under a provision of California's medical marijuana law -- approved by voters in 1996 as Proposition 215 -- caregivers can grow marijuana without breaking the law.

Marshall is the first person in San Luis Obispo County to fight felony cultivation charges using his primary caregiver status as a defense, his attorney Louis Koory said.

Koory has filed a motion in Superior Court to have the charges dropped.

During court testimony Friday, prosecutor Linda Luong questioned whether Marshall was a caregiver.

'Does (Marshall) drive you to your doctor's appointments?' she asked Colin Van Noy, one of the two men who designated Marshall as the primary caregiver.

Van Noy, of Morro Bay, who uses medical marijuana for his asthma and nausea, said no.

But, he added, 'Marijuana is part of my health.'

Cases like Marshall's have cropped up around the state because some provisions of Proposition 215 were not clarified and few laws to enact it passed.

Proposition 215 provisions that allow 'primary caregivers' to grow and dispense pot -- as long as they make no profit from the work -- are not applied consistently.

Counties, for example, are supposed to set up a registration system for medical marijuana users and growers.

While Santa Barbara County's Public Health Department has done so, no such system is in place in San Luis Obispo County.

The cities of Arroyo Grande, Atascadero, Grover Beach and San Luis Obispo recently adopted temporary ordinances banning marijuana distribution centers.

Those temporary bans were put in place to give local governments more time to establish permanent regulations.

Oakland and Bakersfield allow medical marijuana co-ops to operate as distribution centers under the 'primary caregiver' provision of the law.

Local officials also say they are waiting for a U.S. Supreme Court ruling on whether the federal government can regulate marijuana that doesn't cross state lines. That ruling is expected this summer.

Because the law isn't clear, police often aren't sure what to do when they find a stash like Marshall's.

'If someone has the paperwork' designating them as a caregiver 'we usually take that into consideration,' Morro Bay Police Cmdr. Tim Olivas said.

All of the paperwork designating Marshall as a primary caregiver was signed.

Still, because there is no standard document authorizing someone to grow medical marijuana, having the paperwork won't necessarily keep designated caregivers out of jail.

'The paperwork can be confusing,' Olivas said, 'and no one set of it is official.'

Testimony in Marshall's case is expected to resume in two weeks.

You can reach Leslie Griffy at 781-7931 or lgriffy@thetribune

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