CHP Standoff Over Medical Marijuana

December 18, 2005

Brett Rowland, Gilroy Dispatch

A legal battle erupted in the San Benito County Courthouse when the county's public defender demanded a court hearing to determine whether the local California Highway Patrol commander broke the law by refusing to return a man's medical marijuana confiscated during an arrest last year.

Public Defender Greg La Forge argued before Superior Court Judge Steven Sanders that Hollister-Gilroy CHP Commander Otto Knorr should return four grams of medical marijuana, or face the possibility of being held in contempt of court because a judge had already issued a court order mandating the marijuana be returned.

But Knorr said that while California recognizes marijuana as a medicine under certain instances, the federal government does not. That is why he cannot return the substance CHP officers confiscated from 28-year-old Eugene Popok, a Los Angeles-area resident, during a traffic stop for speeding on Highway 156 in October of 2004, he said.

Popok was charged with driving under the influence of marijuana at the time, and La Forge said the criminal charges against his client have already been settled. La Forge did not know what ailed Popok, who was not present during Thursday's hearing, however the primary cause for medical marijuana is chronic pain.

The case was continued to Jan. 19, at which time La Forge said he will ask Sanders to hold Knorr in contempt of court if the commander fails to hand over the marijuana. A misdemeanor contempt of court charge carries a sentence of up to six months in jail. Knorr said he did not know what he would do if Sanders ordered him to return the marijuana in January.

"I'll cross that bridge when I come to it," he said. "I'm in quite a quandary. I stand very strongly on my ethics and have a responsibility to the people of the state of California, the California Highway Patrol and my officers to uphold the law. If I lose my integrity, I have nothing else to stand for."

La Forge called such reasoning "garbage" and pointed to a federal law that protects law enforcement officers from criminal charges related to enforcing state controlled substance laws. Ethics, he said, should not factor into anyone's decision to follow a state law or court order.

"They are trying to get around the court order by hiding behind a penalty that doesn't exist," he said. "The DA's argument that he is being put between a rock and a hard place is garbage."

The case playing out in San Benito's courtroom is a familiar one to Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws. He said similar cases have also been heard in other states.

"It has happened before - usually the local police literally walk across the street and drop it on the steps of the federal courthouse," he said. "It's a very contemporary question. The citizens of California have voted that (marijuana) is a medicine. It would seem malevolent, if not foolhardy, to not return what has been deemed legal."

La Forge believes Knorr's refusal to return the marijuana is in direct conflict with the CHP's policy on medicinal marijuana. Typically, the CHP takes a hands-off approach and will not confiscate the drugs if the person qualifies under state law for possession of medical marijuana, Knorr said. However, since Popok did not notify officers during his arrest that the marijuana was for medical use, it was confiscated.

"The defendant made no claim of medical use during the arrest and was driving under the influence at the time," Knorr said Thursday outside the courthouse. "Our policy allows us not to seize medical marijuana, but it does not allow us to dispense it. That would be a violation of federal law."

The problem, Knorr said, is that state law, prompted by the passage of Proposition 215 in 1996 - which allows people with certain medical ailments to possess small quantities of marijuana with a doctor's recommendation - directly conflicts with a federal law prohibiting the use or distribution of marijuana for any reason.

"We're caught in the middle of both," Knorr said.

But La Forge believes the law is clear, and said the District Attorney "throws the book" at many of his other clients who violate court orders.

"Why is this any different because a guy has a gun and a badge," he said. "It's clearly a double standard."

District Attorney John Sarsfield did not return phone calls for comment on the matter Thursday.

During the hearing, Sanders suggested the marijuana be returned to La Forge, on behalf of his client. But La Forge would not accept, explaining that only police officers are exempt from prosecution for enforcing the state's drug laws.

Although the subject is a touchy one, La Forge believes he'll be successful and based his optimism on a 2002 case in which he was able to get San Benito County Sheriff Curtis Hill to return 11 grams of medical marijuana to another one of his clients.

Hill also was unavailable for comment.



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