Some Santa Cruz pot users, sellers find loopholes in state's medical marijuana laws

January 26, 2007

Shanna McCord, Santa Cruz Sentinel

 

SANTA CRUZ — Half the calls to criminal defense attorney Ben Rice are people busted for growing, selling or using marijuana.

Rice has developed a reputation for protecting the rights of those who buy and sell the drug under the 10-year-old state law that makes marijuana legal for sick people.

While most of those seeking Rice's services are legitimate medical marijuana patients or caregivers, he estimates 30 percent are not. These people aren't sick, he says, and are simply trying to hide behind the Compassionate Use Act for recreational or profit-making reasons.

"Absolutely, no question about it, some people do take advantage of the law," Rice said during an interview at his Soquel Avenue office. "There are some people who have no medical defense, and I tell them, 'No.' "

Authorities say they regularly see perfectly healthy people, some found with several pounds of marijuana, claim the drug is for a sick friend or relative.

The problem, authorities say, is proving otherwise.

Shades of gray

Proposition 215, passed by voters in 1996 and known as the Compassionate Use Act, set the stage for sick Californians to legally use marijuana.

Senate Bill 420 came along in 2003, attempting to set definitive rules and guidelines about who can sell the drug.

But the laws neither clarify who qualifies as a medical marijuana patient nor what exactly the terms are for selling the drug to patients — two gray areas that have opened the law to the most abuse, authorities say.

For example, one part of SB 420 says medical marijuana caregivers should be allowed "reasonable compensation," while another section says medical marijuana sales should be done as nonprofit.

Another example: The Senate bill created a voluntary identification card system that protects patients and caregivers from being harassed or arrested when they show the card to police. But the voluntary element allows many people to claim a medical alibi even when they don't have an identification card or doctor's recommendation. Attorneys like Rice say that's OK.

Ambiguities in the laws force police to let many people off scot-free because it's often difficult to prove guilt beyond a reasonable doubt in a court of law, said sheriff's Sgt. Steve Carney, the head of the county's Marijuana Enforcement Team.

Out of 10 people stopped on suspicion of marijuana crimes in the county, only two cases are sent to the District Attorney's Office on average, Carney said.

A lot of cases are dropped because the district attorney feels the case won't win in court, he said, especially in this area where many residents are sympathetic to the cause.

"The percentage we deal with that I believe are truly legitimate is 1 percent," Carney said.

In addition to the gray areas, there are parts of the law that can be confusing for law enforcement officers.

There are no state regulations for cultivation or distribution of medical marijuana, and California leaves guidelines up to local jurisdictions.

They can vary widely from county to county.

Under Santa Cruz County law, a patient or caregiver is allowed three pounds of the drug each year. Half a pound of pot equals roughly 300 joints, experts say.

In it for the money

Prosecutors say cases like that of Edwin Hoey, which is now going through the local legal system, are an example of someone hiding behind the medical marijuana law for profit.

Hoey, a Santa Cruz man, was arrested in December when deputies found 100 pounds of marijuana at his residence during an investigation. His attorney, Rice, claimed Hoey was providing pot for local medical marijuana dispensaries.

However, more than $500,000 in cash and a French wine collection valued at $150,000 found in Hoey's possession lead prosecutors to believe he was selling marijuana to make a big profit. They say he sold pot to non-medicinal customers on the East Coast.

Hoey has been charged with three counts of selling marijuana.

"He was taking advantage of the medical marijuana law," prosecutor Pamela Kato said. "This really is a case of greed. It's a travesty of the law"

Rice denies Kato's assertion, saying "the vast majority" of Hoey's marijuana was intended for people with a medical need.

Legal limbo

But using and selling marijuana, medical or not, is still a federal crime.

California's law flies in the face of federal law, which considers marijuana an illegal and dangerous drug.

Federal agents have refused to recognize California's medical marijuana law as legal. In some cases the feds have raided California pot gardens and dispensaries.

Earlier this month, federal agents raided nearly a dozen medical marijuana clinics in the Los Angeles area, seizing several thousand pounds of marijuana, weapons and cash.

Two medical marijuana stores exist in Santa Cruz, both located in the Harvey West business area, for patients to buy the drug.

Ken Sampson, owner of Santa Cruz Patients Collective on Limekiln Street, says he tries to prevent people from breaking the law.

Sampson said he's turned away dozens of people who didn't have a doctor's recommendation or proper documentation during the seven months his dispensary has been in business.

"I've kicked many people out," said Sampson, himself a medical marijuana patient. "It has to be a verified recommendation. We don't let them past the waiting room"

The state Attorney General's Office agrees abuse of the medical marijuana system is widespread because the unclear laws leave plenty of room for cheating.

"The medical marijuana law left a lot to be desired in terms of clarity," said Nathan Barankin, spokesman for the state Attorney General's Office. "There's more work to be done"

Many in the legal community hope the ambiguities of the law will be sorted out in the courts.

Several cases regarding medical marijuana are currently pending in the courts to help determine parameters for users and caregivers.

Kato, the county prosecutor, said clearer rules would make her job easier and put more people behind bars.

No other state medical marijuana-related bills are in the works at this time, however the deadline to propose legislation for this year is Feb. 23.

Contact Shanna McCord at smccord@santacruzsentinel.com.



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