The straight dope on medical marijuana
August 27, 2005
Robert McCockran, Times-HeraldNearly a decade has passed since California voters approved Proposition 215 and legalized marijuana for medicinal use.
In 2002, the Legislature followed that state ballot measure with SB 420 that set guidelines for possessing, transporting and distributing the medicine.
But, here it is, nearly fall 2005, and cities such as Vallejo are still trying to grapple with a state law that seems to defy federal regulations.
The reason for their hesitancy is a U.S. Supreme Court ruling in June reversing a lower court decision that federal prosecution of patients who cultivate and possess marijuana for their own use is unconstitutional.
Shortly after the high court's decision, the California Department of Health Services suspended its medical marijuana identification card program. That program was designed to provide patients with evidence that they had received a physician's recommendation to use the drug.
But after the attorney general determined that the program would not aid and abet users in committing a federal crime, the department resumed its operation on July 18. Pilot testing, limited to Amador, Del Norte and Mendocino counties, was already set to end on July 31. (Before the suspension, only 123 cards had been issued).
But, as of Friday, most counties, including Solano County, were not accepting applications for the identification cards.
Medical marijuana advocates say patients with cancer, chronic pain, multiple sclerosis and HIV-AIDS need the drug to relieve the symptoms of those conditions.
But despite medical evidence that marijuana can help, there is still widespread concern that permitting its use could lead to abuses.
And, of course, the conflicting federal and state laws aren't helping settle the controversy.
Vallejo is cautious
Vallejo city officials, for example, are taking a decidedly cautious approach.
City manager Roger Kemp said he's unaware of any local medical marijuana facilities, or any that are planned.
Kemp said any such proposed facilities would likely involve consultation with the district and city attorneys as well as the planning department. Applicants would have to make their case for such a facility, he added, noting that some cities, such as Fairfield, are adopting a wait-and-see approach that included a moratorium approved on Aug. 3.
"We want to comply with the law. We have an open mind, but we're also prudent," Kemp said. "It seems like it's prudent in this case to not be the first bird off the wire here."
Vallejo City Attorney Fred Soley said his office and the planning staff are looking at the issue and at what other cities are doing.
"We're concerned because, obviously, under federal law, you have this issue of federal saying you have problems with (facilities) because the federal law can be enforced against people using marijuana," Soley said. "Because certainly the city does not want to be in the position of sanctioning a use that violates federal law."
"On the other hand, you have the law here in California that apparently allows the compassionate use of marijuana for medical reasons in certain defined situations," he said.
Legal in 12 states
While it seems some local jurisdictions are taking their time about implementing a policy, medical marijuana shows no signs of going away. In fact, 12 states have active medicinal marijuana laws. They are Alaska, Arizona, California, Colorado, Hawaii, Maine, Maryland, Montana, Nevada, Oregon, Vermont and Washington.
But, right now, no one can legally buy medical marijuana in Solano County because there are no dispensaries.
The city of Dixon is the closest toward making that a reality. "We have adopted a medical marijuana section in our zoning ordinance that basically provides for a process for a business or facility that would dispense such a product and define the zones where that would be appropriate," said Dixon City Manager Warren Salmons in an interview.
"We have had no takers. We have no other procedure so we have very little experience other than to put in place the land use side and a permit processing side that would be conducted by the police chief," Salmons said.
Hilary McQuie, of Americans for Safe Access, notes that SB 420, signed into law by Gov. Gray Davis in 2002, attempted to define the activities of marijuana distribution, possession and transportation.
The legislation set up a medical marijuana identification card program; allowed patients and caregivers to organize into collectives; and set a floor under which the valid patient shouldn't be arrested or prosecuted - six mature plants or 12 immature plants and, 8 ounces of dried marijuana. That's the amount allowed in Solano County.
She said the law is explicit in allowing counties and cities to devise higher acceptable amounts. For instance, in Oakland it's 72 plants per patient.
The controversy over medical marijuana has had some tragic consequences.
The U.S. Supreme Court ruled in June 2002, that the federal government still could prosecute individual state legal medical marijuana patients.
McQuie said that a Drug Enforcement Agency raid that same year led to the prosecution of a San Diego caregiver, Steve McWilliams, that netted 25 plants.
She said McWilliams had been a caregiver for a very ill collective of patients, and had been open about his marijuana activities. Eventually, he was convicted and sentenced to six months in federal jail.
After the high court's ruling that medical marijuana use could be prosecuted, McWilliams committed suicide, she said.
"Between the pain and despondency, it was basically suicide by the drug war," she said.
McQuie cited one federal drug raid since June's latest Supreme Court decision - in the same month in San Francisco in which 13 arrests were made. The feds insisted the raid "wasn't on medical marijuana, but a larger drug operation hiding behind the smokescreen of medical marijuana," she said. "I have no reason to believe they're telling the truth."
While federal law enforcement has made some arrests, the behavior of some local police agencies also poses another obstacle to medical marijuana use. McQuie said Americans for Safe Access sued the California Highway Patrol, alleging it has an internal policy of illegally confiscating the marijuana of anybody without a state identification card.
McQuie said since they sued six months ago, there has been a decrease in the seizures. This month they hope to get a preliminary injunction against the agency.
"Marijuana's illegal unless you've got approval or recommendations by a physician," said Wayne Zeise, a CHP spokesman. "We're going to be accepting the cards that are going to be produced and distributed by the California Department of Health.
"Each one of the counties had certain weights of amounts, and if you were not in that county - say, if you had a three-pound waiver to have that much medication and you were driving through Sonoma County, we'd stop and seize the drug and probably cite you for that," Zeise said.
"That's how it's working throughout the remainder of the state, including Solano County. If we stop somebody and find a half a pound of marijuana in there, which could be enough, maybe, for sales, we would seize the evidence and direct them that they would have to go through the court proceedings."
Zeise said a statewide identification card program will make life easier for the CHP because, presently, local counties or cities are issuing "medicinal marijuana cards, but because we haven't got a way to check that, some people may lie to get those - maybe actually drug traffickers moving up and down our freeways with large quantities of marijuana. We'll send them through the courts and let them decide."
Zeise said the CHP is not looking over the back fences to see if somebody's growing pot. "We're responding to what we find out there in traffic. Most folks using that as medicine are not transporting quantities of that anywhere," he said.
It is that position that peeves men and women like Galen Robert Lawton. "It's amazing to me that the CHP can openly say, 'We're not going to enforce this. We're going to take people's medicine,' " Lawton said.
Lawton and his wife, Laura Jane Coleman, were arrested in December on charges of possessing marijuana for sales and cultivating marijuana. A preliminary hearing has been scheduled for 10 a.m. Tuesday Aug. 30 at in Fairfield.
"You got different sheriffs and different police chiefs saying: 'We're only going to support the new ID card' or 'We're only going to do that.' I've never seen a law where police and law enforcement can do as they pleased, and there are no repercussions," Lawton said.
Lawton, who declined to discuss his own case, said he supported the initial 45-day moratorium in Fairfield. But he's becoming concerned that the city's officials may be trying to put the issue on indefinite hold.
"It's amazing to me that I live in Fairfield and you can drive 25 miles to Berkeley and it's a whole different world," Lawton said.
'Follow the law'
District Attorney Dave Paulson said he questions the motives of medical marijuana advocates.
"We follow the law that's set forth in Prop 215 and, as amended to some degree by the Vasconcellos bill (SB 420), we try to follow the law to the letter of the law," Paulson said.
"We don't have any unique policies or any specific written or oral, or any other kind of guidelines. There's nothing like that in the county. We simply follow the law that was given to us by the people," Paulson said.
"The law says that you're entitled to possess a reasonable amount that's necessary for treatment of a serious illness or disease if you are one of two classes of people - a patient or caregiver," he said.
Paulson said a "reasonable amount" would depend upon the "unique circumstances of the individual" and what the doctor recommends.
"We're likely to contact the doctor and talk to the doctor about the person. The person is going to have to give us the ability to do that," Paulson said. "But we're going to talk to the doctor about the diagnosis and the recommended course of treatment and what the doctor believes is a reasonable daily usage or weekly usage."
The only people who can cultivate marijuana plants are caregivers and patients, and they can only cultivate a relatively small amount, he said. "The people that the sheriff is pulling up, 30,000 plants - those aren't people that fall under (Prop.) 215. That's for sure.
"We've had a few people who have been arrested and even fewer who have qualified as a patient or caregiver - I mean cases where there have been an arrest and ultimately we decided not to prosecute. There's been a few, but it's very few," he said.
"There are very few people who legitimately would be recommended for use of this drug by a legitimate doctor," Paulson said.
He said there are no medical marijuana dispensaries in Solano County because "they're illegal."
"It's not a matter of discouraging them. They're illegal under state law and they're illegal under federal law," he said. "The fact that the law is not enforced doesn't mean that the law still doesn't exist."
He said the cases they've chosen not to prosecute involve people with a doctor who has determined a need for that course of treatment, and the amounts have been minimal.
"Those cases that we've chosen to prosecute have been cases where the amounts have been far in excess of a reasonable amount or the medical doctor's recommendation has been given without even so much as an office visit, let alone a diagnosis and recommended course of treatment. They've been the doctor 'feelgood,' fly-by-night kind of authorizations," Paulson said.
"You wouldn't want somebody to be able to call up a doctor and get a prescription for any kind of narcotic medication based on a phone call. We don't want that to happen here, either. The medical community doesn't either."
McQuie responded this way: "We're not saying everybody who is running a medical marijuana dispensary is entirely legitimate.
"I think for the most part they are, but probably there maybe some that aren't. And if they aren't, we fully support state and local police taking action," she said.
She said the state-federal law conflict is unfair to defendants.
"The problem is, once they bring in the feds, then it goes into federal court. Then, under federal law, these people have no defense. They can't bring in any evidence that it was medical only. They can't bring in state law," she said.
"We say, just bring the guys they think are not legitimate up on state charges. That way they can still defend themselves in state court," McQuie said.
Americans for Safe Access is also involved in a formal effort to have the Food and Drug Administration re-schedule marijuana, McQuie said.
Currently, marijuana is placed in Schedule 1 of the Controlled Substances Act, that is, "the most dangerous drugs that have no value," she said. Doctors are not allowed to prescribe it. That is why doctors recommend medicinal marijuana rather than prescribe it. Doctors aren't allowed to aid and abet people in obtaining marijuana, she said.
Once you get a valid recommendation, "you can find one of these dispensaries listed in the phone book or Web sites; go down to the dispensary and you can show them your doctor's recommendation and, usually within 24 hours, you become a member of that dispensing collective and you buy or trade your marijuana for money or labor," McQuie said.
"I think a lot of people from Solano County are forced to drive down to the Bay Area for their medicine," she added.
Typical medicinal use
Who uses marijuana for medicinal purposes?
"(Medical marijuana) certainly helps symptoms associated with HIV-AIDS, cancer and multiple sclerosis. But probably the majority of the patients, maybe up to 50 percent, use marijuana for chronic pain," McQuie said.
"Most patients who use marijuana for chronic pain or some other chronic condition use marijuana pretty differently than (a casual) user. They kind of learn how much they can take without getting high.
"Just like you would take a narcotic for fun, you'd get really high. But if you took a narcotic and you were in extreme pain, you wouldn't really feel 'like wooo.' It's the same with marijuana. If you're using it on an ongoing constant basis such as every hour or two just enough to treat the condition, you're not really experiencing the psychoactive effects of it," McQuie said.
Dr. Tom O'Connell of Berkeley who screens patients for medical marijuana recommendations, said he's learned over the years that they are all pot smokers who started usually in junior high or high school.
"What they're really doing is self-medicating mood disorders," he said, "and it makes a lot of medical sense and it's been very beneficial for most of them."
O'Connell said these smokers, some of them in their 50s and 60s, might think of themselves as recreational users, but they are using marijuana on a schedule and are all treating the same symptoms without realizing it.
He said alcohol, tobacco and marijuana can make teenagers feel better about themselves. "The big difference, pot does it more safely. It won't kill them."
O'Connell said a lot of people treat chronic pain with pot. He said it treats diarrhea and migraine and "a lot of symptoms."
"The other thing that pot does, it treats insomnia," he said, "which 90 percent of the pot smokers will admit to - insomnia."
Nathan Sands of Sacramento said he uses medicinal marijuana to treat "chronic nausea."
Sands is a spokesman of the Compassionate Coalition, an all-volunteer non-profit patients' rights organization.
Feeling of legality
Sands is also a proponent of city ordinances that govern medical marijuana dispensaries.
"One of the biggest advantages that everybody kind of agrees on - they feel like they're doing it legally. That's what they want to be doing. They don't want to be lawbreakers," he said.
"To some extent, they're willing to pay the higher price just for that. But also, what they're payng for is the ability to have a lot of variety to choose from-lots of different quality levels and types," Sands said.
"It tends to have less dangerous chemicals in it or dangerous molds that you'll find more on the street.
- E-mail Robert McCockran at firstname.lastname@example.org or call 553-6829.
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Proposition 215 at a glance ...
Proposition 215, outlining uses of medical marijuana, was passed by 56 percent of California voters in November 1996. Its provisions:
- Patients and defined caregivers who possess or cultivate marijuana for medical treatment recommended by a physician are exempt from criminal laws that otherwise prohibit possession or cultivation of marijuana.
- Physicians who recommend use of marijuana for medical treatment shall not be punished or denied any right or privilege.
- The law is not be construed to supersede prohibitions of conduct endangering others or to condone diversion of marijuana for non-medical purposes.