Filing propels dispute over medical marijuana

July 14, 2005

Josh Richman, The Argus

Medical marijuana advocates are mounting a double-barreled attack this week on what they say is California's reticence to uphold its own compassionate use law, putting Attorney General Bill Lockyer in the hot seat.

On one front, Oakland-based Americans For Safe Access filed papers Wednesday in Alameda County Superior Court seeking an injunction to halt the California Highway Patrol's policy of seizing marijuana from qualified patients, even if those patients have county-issued ID cards or a doctor's recommendation.

The ASA says the CHP blatantly ignores a state Supreme Court decision that said an officer's probable cause to seize marijuana depends on facts, such as presentation of documents identifying the person as a qualified patient.

It also notes Lockyer — whose office defends the CHP in this lawsuit — issued a formal opinion June 23 saying cities can prohibit their police from seizing medical marijuana but can't automatically seize marijuana from or arrest people who don't have voluntary ID cards because that would directly contradict state law.

'The CHP policy of seizing marijuana from qualified patients even when they present a valid identification card is even more at odds with state law, since no amount of proof can avoid a mandatory seizure,' the ASA's filing says.

The filing says the CHP ignores bulletins Lockyer issued to state law enforcement agencies last month after a U.S. Supreme Court decision upholding the federal marijuana ban.

In those bulletins, Lockyer wrote that California's law still stands and police should avoid making seizures and arrests when it seems someone is legitimately using a medically authorized, reasonable amount of marijuana under state law.

So who's right, the lawyer or the client? Lockyer spokeswoman Teresa Schilling would only say Wednesday that the attorney general is duty-bound to defend the state and its agencies against lawsuits; she referred further questions to the CHP.

CHP spokesman Lt. Joe Whiteford said the CHP will honor only the 123 voluntarily-sought medical marijuana identification cards issued so far by the Department of Health Services under a 2003 state law. Officers will seize marijuana from anyone else. He wouldn't comment on the apparent conflict with Lockyer's bulletins.

Meanwhile, two other national groups — the Drug Policy Alliance and the American Civil Liberties Union — wrote to Gov. Arnold Schwarzenegger on Tuesday with a threat to sue the state for suspending the very ID card program the CHP says it's honoring.

The ID card program was just about to expand from a four-county test run to statewide implementation. But state Health Services Director Sandra Shewry last week halted it, saying the need for Lockyer to confirm that employees who issue the cards won't be subject to federal prosecution following the U.S. Supreme Court ruling.

The DPA and ACLU also cite Lockyer's bulletins that state officials 'may not refuse to abide by the provisions of the Compassionate Use Act on the basis that this Act conflicts with federal law.' DPA legal director Daniel Abrahamson of Oakland said it's 'shameful' that court action might be needed to force the state to honor its own laws.

The groups' letter said they'll sue if the ID card program isn't reinstated by the close of business Tuesday. Schilling said Wednesday that Lockyer's office is working 'as fast as we can' to issue an opinion on the program.

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