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Federal law be damned, the California Supreme Court on Thursday held that state law gives those who use marijuana medicinally an affirmative defense toward having possession and cultivation charges dismissed before or at trial. The unanimous ruling — which interprets Health & Safety Code � 11362.5(d), better known as Proposition 215 — also lets defendants prove legitimate medical use by reasonable doubt, rather than the tougher preponderance-of-the-evidence standard favored by prosecutors. “As a result of the enactment of � 11362.5(d),” Chief Justice Ronald George wrote for the court, “the possession and cultivation of marijuana is no more criminal — so long as its conditions are satisfied — than the possession and acquisition of any prescription drug with a physician’s prescription.” The landmark ruling validates Proposition 215, the 1996 Compassionate Use Act aimed at letting seriously ill people use marijuana if recommended by a doctor. But it flies in the face of U.S. v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, a 14-month-old U.S. Supreme Court ruling that said medical necessity, under federal law, isn’t an exception to the Controlled Substances Act. Medical marijuana advocates were overjoyed Thursday. “It’s a huge victory for medical patients across the state,” said Jeff Jones, executive director of the Oakland, Calif., pot club that lost last year’s U.S. Supreme Court case and has appealed a San Francisco federal judge’s 2-month-old ruling prohibiting clubs from distributing marijuana. Thursday’s ruling “helps to regulate and identify the way patients are going to be dealt with in the future,” Jones said. “It’s a huge moment in the history of Prop 215.” In People v. Mower, 02 C.D.O.S. 6428, Tuolumne County, Calif., resident Myron Carlyle Mower was arrested in 1997 on possession and cultivation charges for having 31 pot plants — 28 more than the county’s limit of three per patient or caregiver — at his home. Mower, who uses pot for the pain and symptoms of diabetes, was sentenced to five years’ probation. On appeal he contended that Proposition 215 provided him with complete immunity from arrest or prosecution. The California Supreme Court didn’t buy into that argument, but held instead that Proposition 215 clearly established a defense that a “qualified patient or primary caregiver” could raise at the time of indictment or at trial. The justices also said that the burden of presenting exculpatory evidence falls to the prosecutor in a grand jury, but to the defendant before a judge or magistrate. “In the absence of reasonable or probable cause to believe that a defendant is guilty of possession or cultivation of marijuana,” George wrote, “the grand jury or the magistrate should not indict or commit the defendant in the first place, but instead should bring the prosecution to an end.” The ruling, which reverses Fresno’s 5th District Court of Appeal, remands the case back for a new trial. While Mower lost on his complete immunity argument, the court said, Tuolumne County Superior Court Judge Eric Du Temple erred by telling jurors that the defense was required to prove medical use by a preponderance of the evidence, rather than by a reasonable doubt. Had the jury been instructed properly, George wrote, “it might have found [Mower] not guilty.” For example, he wrote, Mower could argue that 31 plants might be medically necessary for a year’s supply of pot. Santa Clara University School of Law Professor Gerald Uelmen, who argued Mower’s case before the high court, said Thursday that he was “blown away” to get a unanimous opinion and believes it will be a boon to patients. “It essentially equates the patient who’s using marijuana with a physician’s approval with someone who’s got a prescription,” he said. “Patients with a prescription always only had to raise a reasonable doubt about whether they had a valid prescription. Hopefully, [this] will be treated the same by arresting officers.” Uelmen said his only disappointment was that the court didn’t address the issue of individual counties’ plant limits, which range from Tuolumne’s three to 99 in other counties. “It should not depend on what county you’re living in whether you can get prosecuted,” he said. “This is a statewide law, and we should have a statewide standard.” Telephone calls to Sacramento Deputy Attorney General Maureen Daly, who argued the state’s case, and to the attorney general’s press office were not returned. Neither was a phone call to the White House Office of National Drug Control Policy in Washington, D.C. Washington-based Deputy U.S. Attorney General Mark Quinlivan, who’s handling the government’s case against the Oakland Cannabis Buyers’ Cooperative in the 9th U.S. Circuit Court of Appeals, declined comment, noting that his case is still in litigation. Uelmen said he doesn’t expect any stepped-up enforcement by federal agents. “They’ve been hard core with respect to distributors,” he said. “But there have not been any federal prosecutions of patients growing just enough for their own use, and I don’t think we will see federal resources devoted to those prosecutions.” Jones, of the Oakland buyers’ club, said he believes Thursday’s ruling could encourage courts in eight other states that have medical marijuana laws to follow suit. Ballot measures have passed, he said, in Alaska, Arizona, Colorado, Maine, Nevada, Oregon and Washington, with Hawaii adopting a law legislatively. In addition, Jones noted, a medical marijuana measure is on the November ballot in the District of Columbia, a federal jurisdiction.

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