O.C. case a test for medical marijuana

Zaheera Wahid, The Orange County Register ,

LAGUNA BEACH - Ross Embry's AIDS medication causes so much nausea, he says, that the only relief is marijuana. So the 53-year-old resident of Hagan Place, an apartment complex built for HIV patients, grows the plants on his patio and shares it with his neighbors. But Laguna Beach police say Embry doesn't need 25 pounds of marijuana to combat nausea. Officers seized 12 plants - 4 to 8 feet in height - and more than a pound of cut marijuana Sept. 17. Embry will be arraigned today on felony charges of cultivation and possession of marijuana for sale. 'I grew it for my own use and people in the building,' Embry said. 'I don't sell it. I give it away. It's better than going out on the street and buying it.' Embry insists that Proposition 215 allows him to grow and use marijuana for his medical condition, which he has had for 22 years. But the Orange County District Attorney's Office, which activists say has traditionally taken a more conservative approach to medical-marijuana cases than other California counties, disagrees. 'The medical-marijuana rule does not apply in this case,' district attorney's spokeswoman Susan Schroeder said. 'We decide a case by looking at the totality of the circumstances, whether we can prove (it) beyond a reasonable doubt.' Prop. 215, approved in 1996 by state voters, legalizes marijuana use by ill people with a doctor's prescription for it. Supporters say marijuana is frequently used by people with AIDS, diabetes, arthritis, cancer and other illnesses to relieve nausea, increase appetite, and reduce muscle spasms and chronic pain. The District Attorney's Office last year charged medicinal-marijuana activist Marvin Chavez with possession for sale of 46 plants Santa Ana police seized from his home. Chavez had been sentenced to six years in prison in 1998 on separate charges of furnishing marijuana to undercover officers who pretended to be ill. He was free on bail pending an appeal when he was arrested the second time. Schroeder would not specify the determining circumstances in Embry's case but did indicate that the amount of marijuana is an issue. She added that state law does not allow a person to furnish marijuana to others. 'That is ridiculous,' said Hilary McQuie, a spokeswoman for Americans For Safe Access. 'He's a compassionate provider. And 12 plants is a very small number.' McQuie and other activists say state officials should standardize the way medical-marijuana cases are handled. 'We really want (Attorney General) Bill Lockyer to send some clear instructions on this to local prosecutors,' McQuie said. 'It puts local law enforcement in an awkward position because they're not sure what they should do.' The discrepancy between state and federal law, which prohibits marijuana use for any reason, adds to the confusion, she said. Jason Kravetz, spokesman for the Laguna Beach Police Department, said officers are required to arrest anyone in possession of marijuana, regardless of the reasons. 'Officers aren't told to make that (decision) of whether we believe the marijuana is for medical purposes,' Kravetz said. 'If we have enough to make an arrest, we do, and leave it to the judicial system to decide. We are not the tryer of facts.' Kravetz said police received an anonymous tip that led them to Embry's apartment, about a block from the police station. Embry says he has been growing marijuana on his patio for more than five years. The plants bloomed among sunflowers, birds of paradise, ferns and other greenery. 'I look at it as God's gift,' Embry said. 'Sure it can be abused, but it's also beneficial in the right amount.' He would face up to three years in prison if convicted, Schroeder said.