Claim under marijuana act denied

November 07, 2006

Richard Hanners, Whitefish Pilot

A Kalispell man who claimed protection under the state's Medical Marijuana Act after he was caught smoking marijuana at a downtown Whitefish bar will have his day in court later this month.

But he may have to seek another line of defense or appeal to a higher court, now that Whitefish City Court Judge Bradley Johnson has denied the man's motion to dismiss the charge based on the act.

According to court records, on Sept. 8, Flathead County sheriff's deputy Travis Bruyer observed Lucas Venters, 23, of Kalispell, on the upstairs deck at Flanagan's Central Station lighting marijuana in a glass pipe. Venters then allegedly passed the pipe on to Andrew Nuckles, who then allegedly passed it on to Christopher Brann, both of Kalispell.

Bruyer reported that he seized the pipe and a container of marijuana from Venters. Venters told Bruyer his possession and use of marijuana was allowed under the state's Medical Marijuana Act. He was charged with possession of dangerous drugs and drug paraphernalia.

Nuckles and Brann were charged with misdemeanor possession of dangerous drugs. They received deferred sentences in Whitefish City Court and paid a $100 fine.

In a two-page document submitted to city court, Venters claims to have a "debilitating medical condition." He said he has been "in pain every day for the past 10 years due to my spinal, thoracic and neck injuries/conditions," and that he has severe or persistent muscle spasms.

"These spasms limit what type of work I can do, and what types of recreational activities/sports I can participate in," he said. "Some days, just bending my neck downward to tie my shoes, etc. causes my back to spasm quite painfully."

Venters claimed that state law allows individuals who suffer from a debilitating medical condition to smoke marijuana, and "that even if a user is not registered with the state Department of Public Health and Human Services, a medical defense may be raised under the Montana Medical Marijuana Act."

In his brief in opposition to Venters' motion to dismiss, Whitefish city prosecutor Clif Hayden set aside the possibility that federal law may preempt the state's Medical Marijuana Act in order to address Venters' case.

Hayden argued that Venters' conduct "does not fall within the parameters of the act" because he did not possess a registry identification card from the Montana Department of Public Health and Human Services.

Such a card may be obtained through application by providing the department with a written certification that the person is a qualifying patient; the name, address and date of birth of the qualifying patient; the name, address and phone number of the qualifying patient's physician; and the appropriate fee, Hayden said.

"According to the MMMA definitions, 'qualifying patient' means a person who has been diagnosed with a debilitating condition by a physician," he said. "In other words, you need an opinion from a licensed physician to register."

Hayden noted that according to the MMMA, evidence must be presented "that a physician has made a determination that the benefits of use of marijuana outweigh the potential harms for a given patient."

"In this case, the defendant offers nothing but his own analysis of how his alleged symptom fits the MMMA definitions," Hayden said. "He has offered no medical evidence, physician's opinion or otherwise that the benefits outweigh the potential harmful effects."

Johnson ruled on Venters' motion on Oct. 25, saying Venters "failed to assert facts that are vital to claiming protected status under the act."

"Recognizing the scrutiny that the act will invite from both state and federal authorities, the standard may require strict compliance by anyone attempting to invoke the act as a shield to prosecution," Johnson said.

Johnson agreed with Hayden that Venters had failed to satisfy the criteria of the act by not being officially designated as a qualifying patient. But Johnson went further, noting how Venters shared his pipe with two others on Flanagan's deck.

"Assuming that the defendant contends that his open smoking of marijuana was within the scope of 'medical use' as defined within section 50-46-102(5), his 'sharing' of his personal-use medical marijuana with others would tend to negate the limited protection granted by the legislature," Johnson said. "His actions would exceed the purpose of merely alleviating his personal symptoms or effects of his debilitating medical condition. Such activity would encompass criminal conduct not protected by the statutes."

Johnson denied Venters' motion and ordered the case to proceed to trial on Nov. 21 at 9 a.m.


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