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August 2002

County Releases New Medical Marijuana Policy

By Louis Nuyens

The most promising aspect of the new DA policy, one for which the DA office and DA Paula Kamena should be heartily credited, is that it is supported by both local law enforcement agencies and Marin medical marijuana advocates.

The guidelines, entitled, "Marin County District Attorney's Policy Re: Proposition 215 Compassionate Use Act - Medical Marijuana," and issued effective June 7, 2002, are an attempt to comply with the precepts of the voter approved Compassionate Use Act (California ballot measure 215 of 1996). They spell out the circumstances under which the DA's office will not contest the issue of medical necessity.

The issued guidelines are based largely on an overhauled County registration and photo-ID system for medicinal users, to be run by the County Department of Health and Human Services (DHHS). DHHS registration is not legally required of medicinal users, but will be a significant help to law enforcement officers in the field, "when contact occurs over various legal issues as to the decision of arrest and/or confiscation of marijuana, as well as prosecution."

The DHHS program includes procedures for both patients and their primary caregivers. Under the updated registration program, "all application forms and records are completely confidential;" law enforcement will be able to call a 24-hour number to verify a card by its ID number, but will not have access to the application or records used to obtain the card. "No [list of holders'] names will be kept or released. All records are returned to card applicant after being used for application processing.

Together, the DA's policy and the updated DHHS registration program comprise a set of recommended or implied procedures for local law enforcement.

The press release for the policy was accompanied by a "Memorandum of Agreement," signed by the Chiefs of Police of every police department in the County, in which they agree to use the DHHS system, "to verify that a person contacted qualifies for the use of medicinal marijuana."

The DA policy is also endorsed by the Fairfax-based Marin Alliance for Medical Marijuana (MAMM), Marin's only established medical marijuana dispensary, which had criticized earlier County registration programs as asking too much personal medical information with no promise of confidentiality and offering virtually no legal protections to patients or their authorizing physicians in exchange for registering, among other things.

It should be noted that the Memorandum of Agreement does not include outside agencies. For example, the California Highway Patrol has internal policies that preclude entering into such an agreement-the CHP has, however, been made aware of the County ID program, and may make use of it, if they wish. It is presumed that federal agencies, such as the FBI, the US Park Service and the DEA, will have no interest in the County ID program until such a time, if any, that Federal law chooses to respect the choice of California voters regarding medical need as a defense for possession, cultivation and use of marijuana.

Neither the DA guidelines nor the County ID program make provisions for recognizing registration programs of other counties or for allowing people who are not residents of Marin to register locally.

Representatives of the various County offices involved have been united in insisting that the new DA policy and DHHS registration program are the result of development that was entirely internal within the County. Meanwhile, MAMM's Director, Lynnette Shaw, calls these a victory for her organization's advocacy efforts, saying, "These guidelines are 80% of exactly what we have been asking for since 1997, with just a couple of key provisions left out."

But, the important thing is that there is now a system that everyone seems more or less willing to try.

A few rough edges

The practical application of Proposition 215 has proven difficult. Many consider the language to be too vague in that it does not adequately define a "caregiver" and that it sets no limit whatsoever on the amount of marijuana that may be possessed or cultivated for medicinal use.

Also, many individuals in law enforcement are still used to thinking of marijuana as an illegal drug that should be rigorously sought out.

Marin County Sheriff Bob Doyle says he is one who did not support Proposition 215, because of its vague language; however, he is pragmatic: "Marijuana was already not a high priorityÉ I don't want to spin my wheels if [prosecutions] are not happening." But he continues to have reservations about the language of 215. "I have another issue with Prop. 215: it seems to have been purposely written poorly, to allow people to fill in the blanks. A grower with 1000 plants is not a 'caregiver'." In that vein, Sheriff Doyle also remains suspicious of Lynnette Shaw and MAMM, voicing the opinion that, if someone is making money from the sale of marijuana, it is hard to see that as different from drug dealing (apparently distinguishing marijuana from alcohol or prescription drugs). But his suspicions were based partly on the belief that MAMM did not have open books.

(In fact, MAMM has had its books independently audited for the past two years, showing only a marginal operating profit, and made the results available to the Town of Fairfax. Keeping in mind that the best model under 215 might be to consider marijuana a prescription drug, where the sale is expected to result in a profit sufficient to sustain the operation making the product available, it might be beneficial for MAMM to make its financial audit results available to Sheriff Doyle, and perhaps others, upon request. The idea that a dispensary can be designated a patient's 'caregiver' is still subject to some debate, but is not prohibited by 215; and centralizing cultivation could potentially benefit the patients who might, otherwise, be forced to grow their own.)

Another sign of the challenges that remain is indicated by a search and seizure, leading to the arrest of a Fairfax resident on charges of "possession with intent," which took place in Fairfax on 10 July 2002. At press time, there were still several variations of what took place, but the basic story seems to be this: The Fairfax Police Department had received a tip from a citizen regarding a residence with a significant number of plants, were granted a search warrant, and requested the Sheriff's Task Force as backup; however, possibly due to the new DA guidelines or local support for medical use of marijuana, neither agency wanted to make the bust themselves. The issue probably would have dissolved, but someone, apparently within one of those law enforcement agencies, chose to place a call to the federal Drug Enforcement Agency (DEA). (Sheriff Doyle has stated that it was not one of his own who made the call; the Fairfax Police Department has neither confirmed nor denied responsibility.)

The DEA raid resulted in seizure of personal property and over 300 plants (including 'clones,' cuttings that might be used to start new plants). If there is a conviction, federal guidelines require a minimum jail sentence of 5 years. Further details of the case are sketchy-the person arrested had been registered with MAMM (recently lapsed) and had at one time had an agreement to sell overage to MAMM, although MAMM was unable at press time to estimate the amount(s) it might have received from that person. (MAMM generally recommends to patients that they keep cultivation for personal use to less than 100 plants per patient, mainly because the DEA has less legal strength below that limit-the DA policy does not specify numerical plant limits. MAMM itself continues to accept overage grown by patients as a way to supply other patients who cannot or do not wish to grow their own.)

This bust raises at least two issues of significance: would the local atmosphere of support for medical marijuana discourage local law enforcement from a legitimate action against someone suspected of cultivating marijuana for other purposes; and, are there those within local law enforcement departments who are so opposed to the spirit of the new agreements that they would unilaterally "drop a dime" to the DEA about someone whose cultivation might solely serve legitimate medicinal users? Clearly, under current California law (which supersedes federal law for any agency that operates under a governmental body that is completely within the state of California, according to the California state Constitution), neither of these should be the case.

Recent and related

In San Francisco, Supervisor Mark Leno has proposed a ballot measure, motivated by DEA closures of local medicinal marijuana buyers' clubs, which might ease the duties of local law enforcement while improving the consistency of patient supplies by creating a municipal cultivation operation. Since federal law still sees marijuana cultivation, use, and possession as entirely illegal, if approved and enacted, the city of SF might face federal prosecution! It would, however, be interesting to see whom the DEA would try to arrest.

Meanwhile, MAMM Director, Lynnette Shaw has submitted her name for consideration as a representative for the poor and needy to the Marin Community Foundation (Buck Fund). She is also considering running for a spot on the Marin General Hospital (MGH) Board of Directors-she says she is aware of other issues, such as the need for a local trauma center at MGH, and the degree of control the Board has over the facility's contracted operator, but would primarily seek to raise the issue of a blanket policy at local clinics, unique within California, prohibiting physician approvals in cases where a patient might benefit from the medicinal use of marijuana.

 

 

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