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Doctors can advise their patients about medical marijuana without fear of criminal prosecution or losing their ability to write prescriptions, the 9th U.S. Circuit Court of Appeals ruled Tuesday. The decision was met with unbridled enthusiasm by medical marijuana supporters angered by the federal government’s recent crackdown on marijuana dispensaries, and comes as the debate about medical benefits of the drug appears to be heating up. It also preserves a key underpinning of Proposition 215, California’s medical marijuana initiative. “The [government's] policy does not merely prohibit the discussion of marijuana; it condemns expression of a particular viewpoint, i.e., that medical marijuana would likely help a specific patient,” wrote Chief Judge Mary Schroeder. “Such condemnation of particular views is especially troubling in the First Amendment context.” She was joined in Conant v. Walters, 02 C.D.O.S. 10709, by Senior Judge Betty Fletcher and Judge Alex Kozinski, who wrote a broader concurrence providing arguments that could be used to defend state medical marijuana initiatives. “The Commerce Clause limits the scope of national power, while the commandeering doctrine limits how Congress may use the power it has,” Kozinski wrote. “These checks work in tandem to ensure that the federal government legislates in areas of truly national concern, while the states retain independent power to regulate areas better suited to local governance. “Medical marijuana, when grown locally for personal consumption, does not have any direct or obvious effect on interstate commerce.” The case arose after federal authorities sent medical associations a letter threatening to revoke doctors’ Drug Enforcement Agency registrations if they enabled patients to obtain marijuana. Without a DEA registration, doctors can’t write prescriptions of any kind. Represented by the American Civil Liberties Union’s Drug Policy Litigation Project, a group of patients, health care groups and doctors — including one who was being investigated by the DEA — sought an injunction to prevent the government from going after doctors. One of the plaintiffs in the case is Valerie Corral, director of Santa Cruz County’s Wo/Men’s Alliance for Medical Marijuana. WAMM was the target of a raid last month by DEA agents, touching off protests at federal buildings around the San Francisco Bay Area. Agents confiscated 167 marijuana plants and arrested Corral and her husband, but the couple was later released when no charges were forthcoming from the U.S. Attorney’s Office. Corral has since sued for the return of the plants. Meanwhile, criminal charges could still be brought against her. Corral said she has used marijuana for more than 25 years to combat epileptic seizures that once made her life “hellish.” She said she didn’t respond to normal medications. “It’s made all the difference in my life,” Corral said. She still worries about the possibility of federal prison, but said, “When you live in the prison of illness, it reduces the concept of risk.” A Time/CNN poll released Tuesday showed that 80 percent of Americans favor allowing those in need access to medical marijuana. The poll was released in conjunction with a Time magazine cover story about the ongoing controversies and a ballot measure asking Nevada voters whether to legalize the possession of marijuana. Corral’s first appearance in her suit against the DEA is scheduled for a federal courtroom Monday. She and her lawyer, Santa Clara University law professor Gerald Uelmen, said Kozinski’s concurrence will give her arguments more weight. “I’m Xeroxing it for Judge [Jeremy] Fogel,” Uelman said. “We’re going to rely on it in our arguments.” Uelmen has said that Corral’s case is a vehicle for unique arguments not raised before, since patients — at least those who are able — help grow the marijuana at WAMM, and no money changes hands. DEA spokesman Richard Meyer said DEA lawyers in Washington, D.C., were reviewing the decision. “That’s all we have for now,” Meyer said. “All we’re saying is that we’re reviewing the matter,” said Susan Dryden, a Department of Justice spokeswoman. Kozinski pointed out that what the government sought to do would nullify Proposition 215, since state voters decided that the line between legal and illegal marijuana use rests in the hands of doctors. The majority opinion made it clear, though, that doctors could still face prosecution if they write a note for the sole purpose of helping patients procure illegal substances. “If, in making the recommendation, the physician intends for the patient to use it as the means for obtaining marijuana, as a prescription is used as a means for a patient to obtain a controlled substance, then a physician would be guilty of aiding and abetting the violation of federal law,” Schroeder clarified. Schroeder and U.S. District Judge William Alsup, author of the permanent injunction at issue in the case, noted that there are several legitimate reasons for doctors to recommend marijuana. The patient could seek to participate in a government-sanctioned medical marijuana program or petition the government to change the law. In California, many medical marijuana dispensaries require a written recommendation from a doctor. Graham Boyd, director of the Drug Policy Litigation Project, disputed that a written recommendation could make doctors criminally liable. “No, it wouldn’t, as long as it’s a recommendation,” Boyd said. “You would want that note because if a cop pulled you over and said, ‘What’s that green, leafy stuff in that bag on your front seat?’” you could show that you are a legitimate patient under state law, Boyd said.

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