State court overturns medical pot user's conviction for dealing

December 21, 2007

Bob Egelko, San Francisco Chronicle

A person who carries a small amount of marijuana with a doctor's note allowing medical use can't be convicted of dealing the drug just because police thought he was a dealer, a state appeals court ruled Friday.

In overturning an Orange County man's conviction for possessing marijuana for sale, the Fourth District Court of Appeal in Santa Ana said the prosecutor needed more evidence of sales than the opinion of a sheriff's deputy who specialized in investigating narcotics dealers.

The defendant, Christopher Chakos, was arrested in December 2004 in Rancho Santa Margarita near the medical office where he worked as a phlebotomist, drawing blood for lab tests. Officers found seven grams of marijuana in his car, along with a doctor's note recommending pot for his pain and depression.

They found more marijuana, in varying amounts, in a search of his apartment, along with a digital scale and a closed-circuit camera system.

The marijuana totaled about 6 ounces, less than the 8 ounces that medical marijuana patients can possess under state law. But Chakos was convicted of possession for sale based on expert testimony by Deputy Christopher Cormier, who conducted the search and said he had concluded Chakos was a dealer. Chakos was placed on probation for three years.

Cormier based his conclusion on the exact amount of marijuana in the car, which he said was typical of dealers, and the presence of the scale and the camera system at the apartment, despite defense testimony that the camera system belonged to Chakos' half brother.

Cormier said he had taken part in more than 100 drug investigations, but acknowledged that none involved a medical marijuana patient with a doctor's note.

The appeals court relied on a 1971 state Supreme Court ruling overturning a possession-for-sale conviction of a man who was using Methedrine, a trade brand of a type of methamphetamine, with a doctor's prescription. The court in that case said the arresting officer, who concluded the man was a dealer, lacked experience in cases involving the medical use of otherwise illegal drugs.

In this case, likewise, the deputy's apparent unfamiliarity with medical marijuana cases made him unqualified as an expert witness, the court said. The justices said some of the evidence Cormier cited could have been explained by the difficulties a medical marijuana user often encounters in obtaining the drug, and by the need to comply with the legal 8-ounce limit.

"The record fails to show that Deputy Cormier is any more familiar than the average layperson or the members of this court with the patterns of lawful possession for medicinal use," Presiding Justice David Sills said in the 3-0 ruling.

Online resources­

To read the appeals court's ruling, go to:

links.sfgate.com/ZBWR

E-mail Bob Egelko at begelko@sfchronicle.com.



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