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After being arrested for possession and cultivation of marijuana in 1997, Myron Carlyle Mower, who smokes pot to ease the pain and symptoms of severe diabetes mellitus, argued that California’s Proposition 215 provided him immunity from prosecution. On Tuesday, the California Supreme Court wouldn’t go that far, but — to the delight of a roomful of pot advocates — the justices seemed ready to offer medical marijuana defendants an opportunity to defend themselves against narcotics charges without having to go through the ordeal of a trial. “I feel good,” said Santa Clara University School of Law Professor Gerald Uelmen, who argued Mower’s case. “I think they’re with us.” Proposition 215, the Compassionate Use Act passed by voters in 1996, allows severely ill Californians to raise marijuana for their own use, without fear of prosecution, if they have a physician’s recommendation. Many people with cancer, AIDS and other illnesses claim that pot eases their pain and helps them retain appetites through the worst of times. The court’s ruling, expected within 90 days, could sort out myriad issues that have plagued Proposition 215 since it passed. Law enforcement agencies and prosecutors have danced around the issue all along, with some agencies prosecuting anyone using marijuana, even if claimed for medical use. Officials in other places, such as San Francisco, have taken an almost hands-off approach. The ruling could decide once and for all whether qualified Californians do, indeed, have a right to pot as a medicine without fear of persecution, as Proposition 215 declares. In Tuesday’s case — People v. Mower — Mower, a resident of Tuolumne County, Calif., was arrested for possession and cultivation, after officers, who were aware of his pot use, discovered he was growing far more plants than the county’s three-plant limit. Mower, who is legally blind and suffers nausea and constant pain, argued that the express language of Proposition 215, codified as Health & Safety Code � 11362.5, provided him with immunity from prosecution, whereas prosecutors contended that, at most, the statute gave him an affirmative defense that he could raise at trial. Fresno, Calif.’s 5th District Court of Appeal, in a ruling in late 2000, sided with the state. “We hold that the act provides those claiming to be qualified patients an affirmative defense, not complete immunity from prosecution,” the court ruled. On Tuesday, Uelmen, as he had in court papers, modified Mower’s argument to claim a right to a qualified immunity, wherein defendants would have the initial pretrial burden of proof of showing that they are using marijuana with a doctor’s recommendation. But if they failed, he argued, the state would carry the burden at trial. The justices didn’t indicate whether they would buy into a qualified immunity concept or prefer an affirmative defense remedy. But their questions to Sacramento-based Deputy Attorney General Maureen Daly indicated some desire to ensure that desperately ill people have some recourse other than a full trial to defend themselves. “If we decided the bar [for a defense] could be raised in a pretrial motion, would it matter what the burden of proof is?” Justice Janice Rogers Brown asked. Justices Joyce Kennard and Kathryn Mickle Werdegar weighed in by positing questions about whether the burden of proof for defendants should be the simple reasonable doubt standard or the tougher preponderance of the evidence method. Kennard also asked Uelmen how he’d feel if the court allowed defendants to use the preponderance of evidence standard on a motion to quash, but then, if they failed, lowered it to the reasonable doubt standard at trial. Uelmen began debating the issue before realizing that he was being offered a bone. “I should probably shut up,” he said. “What you’re proposing might be more beneficial to the defendant.” Uelmen also argued Tuesday that local governments should not be allowed to set arbitrary limits for the number of plants that should be grown, but that there should be a broader state standard. Had Mower lived in California’s Sonoma or Del Norte counties, where the limits are for 99 plants, Uelmen noted, Mower wouldn’t have been arrested. Chief Justice Ronald George engaged Deputy Attorney General Daly on that point, asking what she meant when she said Mower, who had 31 plants, had more pot plants than were allowed by Proposition 215 for personal use. “In what time period?” he asked. “Does that mean that day, that week, that month?” “We don’t have an answer for that,” Daly conceded. “But it can’t be unlimited.” Well then, George inquired, how does harvest figure into the personal use category? What if some plants are ready for harvest now, he asked, but others won’t be ready for some time? “It would have to be a fairly limited current use,” Daly said. “But you’ve said the burden is on the defendant initially [to prove legal use as recommended by a doctor],” George continued. “Isn’t that going to vary from officer to officer [as to how much pot is too much]? And doesn’t that give need for some kind of pretrial determination?” Justice Marvin Baxter did not participate in the case, and was replaced by 6th District Justice Nathan Mihara.

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