Man loses card for medical pot; activists cry foul
July 21, 2004
Bill Bishop , The Register-Guard
Medical marijuana activists say a Lane County judge overstepped his authority Wednesday when he ordered a Eugene man to surrender his medical marijuana card as a condition of probation for illegally growing marijuana.
Matthew Lee Hardy, 23, said the ruling means he must resort to narcotic painkillers to treat the chronic back injury he suffered five years ago in an automobile accident. He said he will appeal the ruling.
'It (marijuana) actually takes the pain all the way away,' he said. 'Other pain drugs don't. Half of them make me nauseous.'
His wife, Mallika Santosha Hardy, 21, said the ruling means that Hardy will spend more time in bed with pain or asleep under narcotic painkillers.
She said she works as a dancer to pay the family bills and legal costs while her husband stays home with their 15-month-old daughter.
Matthew and Mallika Hardy both were convicted in March for growing nine marijuana plants. Mallika Hardy also was convicted for methamphetamine possession, although she insists the drug belonged to a roommate.
Matthew Hardy's case came before Lane County Circuit Judge Ted Carp after probation officer Leah Collett asked the judge to clarify whether Hardy is permitted to use marijuana for medical treatment while under her supervision. Probation terms typically forbid illegal drug use.
The court record indicates Hardy did not have a medical marijuana card until after he was convicted and put on probation for illegally growing marijuana.
'If he's allowed to consume marijuana, I'm not sure there's a point to the probation,' Collett told Carp. 'I'm concerned that at his young age, the ongoing use of marijuana is getting in the way of his being productive. The financial situation for the two of them is pretty dismal.'
Defense lawyer Robbie Manders told Carp he has found no case law giving judges power to prohibit defendants from taking prescribed medication.
In questioning Hardy, Carp noted Hardy has no regular physician and the doctor who recommended marijuana examined Hardy only one time.
'I think he needs to stop using marijuana,' Carp said in court.
'It sounds to me like the bare technical minimum to fit in with this medical marijuana has been accomplished, but he's not seeking real medical treatment.'
Carp threatened to jail Hardy's supporters after they groaned their disappointment at his ruling.
Shawn Flury, director of the Oregon Green Cross, said Carp's remarks show the judge is biased against the medical marijuana law and against Hardy because Hardy's learning disability prevented him from answering the judge's questions articulately.
Flury, a Polk County resident whose group supplies medical marijuana patients, said the prosecution and supervision of Hardy is a waste of taxpayer money.
Leland Berger, a Portland lawyer who helped draft the 1998 Oregon Medical Marijuana Act, said Oregon judges generally allow card holders on probation to use marijuana.
'It's inappropriate for a judge to interpose his belief about what's medically appropriate,' Berger said. 'The act of obtaining a medical marijuana card is an act where a person brings his conduct into compliance with the law, which is the whole point of the criminal justice system.'
Joan Copperwheat, who supervises local probation officers, said Hardy's case raises questions that are becoming less rare as more offenders on parole and probation get medical cards. She said some card holders obviously need them, while others manipulate the system.
Lane County District Attorney Alex Gardner, who presently is surveying public opinion about whether to continue prosecuting drug possession, said the Hardys denied responsibility for their crimes and refused alternative programs to settle the case.
'The Hardys are in their present circumstance because they chose to be,' Gardner said.