Case stirs the pot on medical law

January 30, 2006

Nancy Lofholm, Denver Post

A fire at Ryan Margenau's Gunnison townhouse last spring ignited a court case that made him an unwitting pioneer for medical marijuana in Colorado.

Out of town at the time of the fire, Margenau directed officers by phone to his garage, where combustibles were stored. The officers also found Margenau's medication for chronic back pain stemming from a car accident - four marijuana plants thriving under a grow light in a cupboard, as well as less than an ounce of dried and concentrated marijuana.

Margenau, who used marijuana under a doctor's order but wasn't on the state registry, was arrested upon his return and charged with four felony counts of possession and cultivation. A costly nine-month legal ordeal ensued.

In Colorado's first medical-marijuana trial, Margenau was acquitted last month by a jury in conservative, ranching-based Gunnison County. Medical-marijuana advocates called it a landmark victory. Law enforcement labeled it a good example of why the medical-marijuana initiative approved by voters in 2000 is flawed.

"This should put a pall on prosecutors and law enforcement for pursuing these cases," said Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws.

"One of the lessons that came out of this trial was, in my opinion, how poorly drafted the medical-marijuana initiative was," said the prosecutor in the case, Deputy District Attorney Geoff Nims.

The state doesn't require that a person be on the registry. A verifiable disability or illness and a physician's recommendation are enough to be within the law. The measure also attempts to limit patients to no more than six marijuana plants at varying levels of maturity.

Nims said the issue could be simplified if marijuana were prescribed by doctors in the same manner as other drugs.

Margenau had been using the drug since the summer of 2004 after he became fed up with the narcotics that doctors had prescribed for the pain caused by 14 herniated discs and four displaced ribs suffered in a car accident.

Margenau's attorney, Robert Corey of Denver, who handles most of Colorado's medical-marijuana cases, called the case "a victory for medical-marijuana users across the state" and also "a victory for compassion and ... for the voters who voted this in."

Corey said other such cases have been dismissed before they went to trial. Charges are never brought in many other cases when patients show medical- marijuana registry cards or prove a medical need.

Margenau said he elected to stay off the Colorado Medical Marijuana Registry for fear that it could bring unwanted law enforcement attention.

Now, he's one of the 713 Coloradans who've signed up but said he continues to look over his shoulder as he treats his ailing back with the drug. He worries that the muddle of state and federal marijuana laws could land him in trouble again. Any marijuana possession is still a crime under federal law.

"I am terrified," said Margenau, who had faced a possible two- to six-year prison sentence. "I don't grow my own medicine anymore. I'm now spending money to buy it from a caregiver in Denver."

He said marijuana hasn't proved to be a perfect pain antidote, but drugs like OxyContin and Talwin made him woozy, lightheaded and nauseated without being very effective. Margenau, a 2000 graduate of Western State College in Gunnison, said that while using those drugs he had difficulty working at any of his three jobs - property manager, liquor-store clerk and supervisor for a cleaning company. He said he tried marijuana after a friend's father told him he had used it and found relief from chronic pain without the side effects of synthetic narcotics.

Corey said there is still confusion about what medical-marijuana patients need to do in Colorado.

"There is a little bit of an educational process going on. Medical marijuana goes against the grain of what prosecutors and law enforcement have been doing for so long," he said.

"It's an ambiguous law at best. It seems to be the trend that marijuana is in the same position now that alcohol was in during Prohibition," said Gunnison County Sheriff Rick Murdie, who said Margenau would not have been arrested if he had been on the registry - or possibly if he had immediately made it clear that he was using marijuana under a doctor's order.

Margenau, who spent more than $13,000 on attorney fees and lost plants valued at more than $30,000 by law enforcement, is considering other legal action to recoup his losses, but he said he's happy for now to have his medicine.

"Not even marijuana helps all the time, but it allows me to live," Margenau said. "I can do things now. I can get relief."

Staff writer Nancy Lofholm can be reached at 970-256-1957 or nlofholm@denverpost.com.



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