Suit Challenges CHP Confiscation of Medical Pot

February 14, 2005

Eric Bailey, Los Angeles Times

SACRAMENTO — Mary Jane Winters, a registered nurse, doesn't dispute that the California Highway Patrol officer had a right to pull her over and write a ticket for speeding. But what galls Winters is that he took her medicine. In her case, that medicine is marijuana.

She has a legal recommendation from her doctor to use cannabis to numb the pain and spasms in her back, damaged while trying to lift a 421-pound patient a decade ago. None of that mattered to the CHP officer who stopped her last Thanksgiving as she zipped through Mendocino County. He confiscated her pot and cited Winters for possession of more than an ounce.

Within two months, the charges were dismissed, as authorities reasoned that Winters had a legal right under Proposition 215 — the state's 1996 medical marijuana law — to use the drug her doctor recommended.

But Winters, 53, isn't mollified. She and other pot patients who have run afoul of the CHP are launching a counterattack.

Americans for Safe Access, a patient support group, plans to announce today in Oakland a lawsuit against Gov. Arnold Schwarzenegger, the CHP and Atty. Gen. Bill Lockyer asking that the state stop confiscating medical marijuana from patients.

Police confusion about medical marijuana is nothing new. Medpot activists say the CHP remains the worst offender, confiscating even the smallest amounts of pot and sometimes arresting patients even after they present documentation from a physician.

The CHP has "an obligation to uphold state laws. And medical marijuana is legal in California," said Joseph Elford, an Americans for Safe Access attorney.

CHP officials say the matter is hardly so clear-cut.

Tom Marshall, a CHP spokesman, said there remains a conflict between state law and the federal government's prohibition against pot use for any purpose.

But the biggest sticking point for the CHP, he said, is the absence of state identification cards for medical marijuana patients. The cards were authorized by the Legislature in 2003, but state health officials balked at launching the ID program because of budgetary constraints.

"Until the day arrives that there's a card," Marshall said, "we're going to continue to enforce the law as we always have."

Steph Sherer of Americans for Safe Access said that the ID cards are voluntary and that patients can provide a doctor's written recommendation as proof they're legal. The CHP, she said, "is fooling themselves."

Tiffany Simpson, 23, a college student from Richmond, has a doctor's recommendation to use pot for chronic pain in her back and knee. A CHP officer smelled pot in her car after pulling Simpson over on Christmas morning for what he said was a registration problem.

The officer found that Simpson's car was properly registered. But he cited her for less than an ounce of marijuana and lectured her on the conflict between state and federal law on medicinal uses.

"I just don't understand what's going on with the Highway Patrol," she said. "They don't do this with diabetics."

Simpson will be one of the plaintiffs in the lawsuit, along with Tony Bowles, 28, of San Francisco.

Bowles was two blocks from home last May when two CHP officers pulled him over and confiscated 4 grams of marijuana. A caregiver for his mother, Bowles said he was toting the drug home for her use. He showed the officers an ID card issued by the San Francisco health department. They wouldn't accept it as proof.

"They said they were following maximum enforcement of the law," he said. "I thought Proposition 215 was the law."

San Francisco prosecutors dropped the case against Bowles within a few weeks.

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