Prosecutor shakes up law debate

September 24, 2006

K. Kaufmann, The Desert Sun

An ordinance to allow medical marijuana dispensaries in Riverside County faces an uncertain future following an official statement opposing dispensaries issued last week by county District Attorney Grover Trask.

The ordinance is set for a public hearing and vote at the Board of Supervisor's meeting Tuesday in Riverside, but Trask's argument - that federal drug bans pre-empt California's law allowing medical marijuana - has even former dispensary supporters concerned about the law's legitimacy.

"I'm not going to approve something that's clearly illegal," said Supervisor Roy Wilson of Palm Desert, who had encouraged county staff to work with medical marijuana advocates to craft the law. "We are going to have to weigh the arguments."

Although the county's law would apply only to unincorporated areas, it is being closely watched by cities considering similar regulations - like Palm Desert and Palm Springs, both of which have dispensaries currently in operation.

The Palm Springs task force working on the issue put the draft of a city dispensary ordinance on hold Thursday following the publication of Trask's "white paper" opinion on Wednesday.

"I feel very uncomfortable moving forward with the dispensary (ordinance) as long as this is on the table," said Mayor Pro Tem Ginny Foat at Thursday's meeting. "I have council members who will be nervous about the white paper."

Crackdown ahead?

Dispensaries and patients are also on edge, concerned that failure of the Riverside ordinance could signal a pending crackdown.

Garry Silva of Sky Valley had been growing medical marijuana for himself and small group of qualified patients when his home was raided by the Drug Enforcement Administration in March. Silva - who had a doctor's recommendation to use medical marijuana for back pain - was not arrested, but now relies on dispensaries for the drug.

"For me, it's mostly edibles," he said, referring to food products laced with medical marijuana. "I use it in place of muscle relaxers and pain killers."

Sarah Pullen, a spokeswoman for the DEA, said the agency does not prosecute individual users and is not affected by state or local laws.

"The DEA mission is to enforce (federal law) and investigate large-scale sophisticated drug organizations that supply some of these dispensaries."

Stacy Hochanadel - who owns CannaHelp, a dispensary in Palm Desert - said he gets most of his medical marijuana from other patients who grow an average of 30-45 plants.

"I wouldn't consider that to be a criminal organization," Hochanadel said. "As far as commercial marijuana available on the street, we stay away from those kind of people."

Having city and county dispensary ordinances "might give me a little more security every day," he said. "If they don't pass (the county ordinance), it's that much more insecure we feel as patients and suppliers."

Different views

The outcome of Tuesday's Riverside County supervisors vote may ultimately depend on which interpretation of state and federal laws the individual supervisors accept.

Trask's white paper relied primarily on the Supreme Court 2005 decision in Gonzales v. Raich, which ruled that federal drug laws banning all marijuana use take precedence over California laws allowing medical marijuana use for qualified patients with a doctor's recommendation.

He also argued the state's laws should be narrowly applied to a limited numbers of patients, their caregivers and collectives growing for a small number of members. Dispensaries, Trask said, are illegal under both federal and state law.

Medical marijuana advocates contest this approach, pointing to policy statements from California Attorney General Bill Lockyer following the Raich decision.

"Federal law doesn't trump state law, both laws coexist in California," said Lockyer spokeswoman Teresa Schilling, summarizing the attorney general's position. "Unfortunately, (that) creates tension at the local level."

On dispensaries, Schilling said, they are not specifically mentioned in Senate Bill 420, passed in 2003 to provide guidelines on medical marijuana to local governments.

But "it does say local governments have to find a way to provide patients with medical marijuana," she said. "Dispensaries are one way to do that."

David B. Cruz, a professor of constitutional law at the University of Southern California, sided with Lockyer, calling Trask's white paper "confused."

Cruz said Trask's narrow reading of California law goes against legal precedent, which is to interpret criminal laws leniently.

"(They affect) people's liberty," he said. "If there are different reasonable interpretations, you read the one that criminalizes less."

Schilling pointed to the challenge to the California law from San Diego and San Bernardino counties currently in San Diego Superior Court, as possibly resolving the state-federal tension for local governments.

The case will be heard on Nov. 16, said William Dolphin of Americans for Safe Access, one of the advocacy groups arguing the case with the state.

With medical marijuana laws on the books in 11 states, "California is the laboratory for figuring out how best (to allow dispensaries)," Dolphin said. " It may take a court to say you have to support state law and implement (it)."

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