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Pot Law a Bust

Jon Pendergraft
Michael Amsler

Bush Doctor: Jon Pendergraft, 49, uses marijuana to help regulate his blood sugar.

For local medical marijuana patients, legal issues still cloud Prop. 215 guidelines

By Bruce Robinson

"MY DOCTOR is extremely pleased; he's very happy with the way things have gone since I've been on the marijuana," says Alice Downing. The 36-year-old Sebastopol woman has been using medical marijuana for about five months to combat the symptoms of systemic lupus, which include arthritis and severe migraines.

"The marijuana helps with the headaches and helps me reduce the amount of steroids I've been on," Downing reports, something that she and her physician, a specialist whom Downing describes as "Mr. Western Medicine," had not been able to do in months of trying other approaches.

A nurse for a dozen years before her health declined, Downing had experimented with pot "only once ever" years before she turned to it as medicine. "I didn't like the way it made me feel," she confides. It was only after the passage of Proposition 215--the landmark "Compassionate Use" initiative that allows medical use of marijuana with a physician's prescription and won a surprisingly strong victory in the state's general election last November--that Downing began to study the medical applications of cannabis and subsequently began to use it.

Jon Pendergraft, on the other hand, has been self-medicating since long before the term "medical marijuana" entered the public lexicon. A veteran construction worker, the 49-year-old husband and father uses cannabis to ease the symptoms of three different ailments.

"I am diabetic, and I find that marijuana helps me regulate my blood sugars," he reports. "It's quite beneficial. I've got pretty bad arthritis in my joints and I get quite a bit of relief from marijuana in that way, too."

In addition, Pendergraft is at risk for glaucoma, another of the conditions that cannabis aids. "That wouldn't bother me so much if my father wasn't going blind from glaucoma," he says. "I'm hoping the cannabis will help my eye pressures."

Under the law that 56 percent of the state's voters supported a year ago, patients who have the documented support of their physician can now legally possess and consume marijuana for medicinal purposes. But the initiative was deliberately vague about a number of interlocking issues: how much pot is allowable, how a patient is to acquire it, and the precise form the doctor's endorsement should take.

Consequently, each county has had to develop its own policies and procedures for implementing Prop. 215. In Sonoma County, the sheriff, district attorney, members of the Sonoma Alliance for Medical Marijuana (SAMM), public health officials, and others met over several months to draw up a set of guidelines governing the application of the new marijuana laws. Those guidelines were formally adopted last July only after activists complained that local law enforcement was taking too aggressive a stand against the use of medical marijuana. In the courts, District Attorney Mike Mullins was prosecuting the first medical marijuana test case (defendant Al Martinez was killed in a car crash in May before the case went to trial), and then-Sheriff Mark Ihde had vowed to turn in to federal authorities any physician dispensing a prescription for pot.

Yet, despite the guidelines, some local pot smokers remain embroiled in a legal limbo over their supposedly legitimate medical use of the otherwise illegal weed. The guidelines, which have since been adopted by all the police departments within the county, spell out qualifications for patients and caregivers, and set a strict standard of accountability for physician-endorsed use of marijuana for a list of illnesses and conditions that includes "cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraines and any other illness for which marijuana provides relief."

When investigating cases of possession or cultivation of marijuana, the guidelines note, "The Deputy must inquire if the marijuana possessed or cultivated is for medicinal purposes." If the answer is affirmative, a report is to be compiled containing the identification of the individual, the name, address, and phone number of the doctor who endorsed the marijuana use, and a series of questions about the patient's condition, medical history, and pattern of usage.

Even if the responses tend to confirm the legal, medicinal use of the marijuana, the officer is still instructed to weigh the pot or count the number of plants being cultivated, take pictures, and collect a small sample for evidence.

Initially, the guidelines were hailed by such SAMM representatives as Carol Miller, who said at the time, "I think the policy as written is really a very accurate interpretation of the wording of the initiative and the other laws that exist around marijuana."

But after five months of seeing how those guidelines have been applied, some medical marijuana activists are not so pleased. "The guidelines were bullshit from the very beginning. They meant nothing," snorts Alan Silverman, one of the leading proponents of Prop. 215 in Sonoma County. "The only guidelines are that patients will not be arrested and have all their medicine confiscated. What happens is that they are not arrested, but they have a small amount of their medicine taken away and then they are harassed and prosecuted."

Santa Rosa attorney Sandy Feinland, who assisted SAMM in the discussions with the guidelines' developers from the Sonoma County Sheriff's Department and the District Attorney's Office, agrees that the guidelines were flawed from the outset. "They have always left a great deal to the discretion of individual police officers and the district attorney," he observes. "No clear guidelines for amounts, who would qualify, and what people needed to show [to investigators] were ever clearly established. So you get into a situation where everything is on a case-by-case situation."

Feinland is also critical of the way the guidelines have obligated patients to open their medical histories to investigators (see sidebar, "A Better Solution?"). "The guidelines for the police in this county provide for the officers to detain and interrogate patients who assert a medical defense and to then ask personal, private questions of physicians about the specifics of their condition," he says. "In other counties, the police are instructed to obtain information from the patient and then to confirm with the physician that indeed there was a recommendation or approval, so there's no intrusive interrogation of the patient and no violation of the patient-physician privilege."

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Medical marijuana certificates.

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THAT'S A CRUCIAL ISSUE, especially from the doctors' point of view. Despite the California Medical Association's support of Prop. 215 prior to the 1996 election, doctors in the state have been warned that they may face severe sanctions if they authorize or recommend that their patients use marijuana.

"The Drug Enforcement Agency will yank your right to prescribe narcotics and they will cut your Medicare patients and blacklist you with Medicare and Medi-Cal," fumes one Sonoma County medical specialist, who asked not to be identified. "The CMA and the Sonoma County Medical Association as well recently put out a bulletin warning doctors there is absolutely no protection if they take a stand on this issue. It's just asking for trouble."

But speaking anonymously, this doctor--who says he has recommended against marijuana use by the few patients who have asked about it--irately denounces the government's intrusion into his practice of medicine. "What makes me angriest about this is the infringement on the right I have, as a physician, to speak freely with my patients," he says. "This is the federal government in the room with me and my patient, and I resent that. I feel that this [right to prescribe medical marijuana] falls within the purview of my professionalism."

Dr. David Fishman, a general practice doctor in Sebastopol, agrees. "As a physician, it's bad enough having HMOs around, but having government tell us you can or can't do this, I don't feel that's right. It's certainly inappropriate for them to act that way, considering that the initiative has passed."

As for the medical applications of cannabis, Fishman says, "I'm not a believer that prescription drugs are necessarily better than marijuana. In fact, there are probably cases in which marijuana is better." But so far, no such case has arisen in his practice. A handful of patients have raised the issue of medical marijuana, he admits, but "the people who have asked me have been people where it's obviously inappropriate," patients with past histories of addictions or psychological instabilities.

"It's obvious to tell them no."

SKEPTICS SAY that such inquiries by patients were a predictable consequence of Prop. 215's passage, and there have been others who have claimed a need to use pot to ease their ills. Sonoma County Sheriff Jim Piccinini notes that his deputies have made 58 arrests for marijuana cultivation since the initiative passed last year. "In all 58 cases," he says, "someone has claimed they were raising medical marijuana," even one with a garden of 50 plants.

However, when pressed, only four of the 58 "said they were seeing a physician," the sheriff adds. Even so, those four cases were referred to the district attorney along with the others. "We let the DA make the final determination if the matter is to be prosecuted," Piccinini says. "We just gather information."

Yet, based on that information, three of the four growers who cited a physician's guidance were prosecuted all the same. "According to the most recent case, which is People vs. Trippet, medicinal marijuana is an affirmative defense to be asserted by the patient," says District Attorney Mullins, noting that this leaves the onus of proof on the patient. Thus he has forced those using that defense to prove in court that they need the pot, although none of the cases has come to trial yet.

Mullins believes the policies he helped develop are working, although "there are some major stumbling blocks, one of which is the reluctance of physicians to make recommendations or even approvals. And there's not much I can do about that reluctance."

While others may criticize the guidelines, Mullins says they may well set a precedent for other counties. "I'm told we're the only county where the sheriff and the district attorney have actually promulgated and successfully had a law enforcement protocol adopted," he says. "Maybe that will be a standard for somebody else. I don't know."

The guidelines are intended to allow patients to grow their own marijuana, which sidesteps the tricky issues of purchasing or transporting something that remains on the federal government's list of most strictly prohibited substances. But they do not spell out allowable amounts, which Mullins says was a deliberate choice.

"I asked the people in the Sonoma Alliance if they wanted a particular number of plants for each patient, and all of them voiced the opinion that was not a good idea, because there could be different levels needed for each patient, depending on their situation," he explains. "And that didn't seem unreasonable. But that means law enforcement will have to take it on a case-by-case basis, which doesn't give the people out there, the patients, a standard they can rely on."

But such statements are not consistent with the way the law is being enforced against growers of small amounts, counters attorney Sandy Feinland, who is representing one of the patients being prosecuted. In that pending case, Nancy Maffei and her caregiver, Robert Cullen, had 24 plants in the garden of their Sebastopol home when it was targeted last August in a raid by members of the Campaign Against Marijuana Planting. Six of the plants were uprooted and five others clipped by the deputies, acting under the county guidelines. Maffei presented her doctor's documentation to police, but charges were subsequently filed against the couple, reportedly because Mullins believed they intended to sell off a surplus that he said exceeded her medical needs.

Feinland contends that Mullins and his staff "have a far too restrictive interpretation of Prop. 215. They don't recognize as patients people who qualify under the statute, and that their policy regarding what amount is appropriate for a patient to possess is far too limited.

"In other counties, law enforcement is working with the patients and caregivers to set up systems where people can obtain it, and those people who obtain it [in ways prescribed by the legal guidelines] are not harassed or prosecuted," Feinland continues. "Here, they're refusing to set up a system that would facilitate the distribution, and when people are trying to grow it themselves, the policies are unreasonably restrictive."

Other counties, including Mendocino, Marin, and San Francisco, have allowed marijuana "buyers' clubs" to operate as a source of supply for patients unable to grow their own medicine, but Mullins remains strongly opposed to that approach.

"If you have a buyers' club, you have to have a source. That means somebody has to grow a large amount of marijuana," he reasons. "That would be very difficult to control. It would present a terrible security problem for whoever is doing the growing, and you would have to accept a great deal upon faith. And who controls the registry of who belongs to the club? A buyers' club just leads to innumerable problems."

Nor is Mullins particularly receptive to the concept of a registry of medical marijuana patients, such as is under consideration by the Marin County Board of Supervisors. "It's not necessarily a tool that's useful," Mullins says. "Registration doesn't necessarily mean that someone's not going to be checked out by law enforcement. And who does the registration? Is public health willing to take on that responsibility?

"A board of supervisors is in a position to pass a resolution, but a resolution doesn't have an effect on a district attorney, because a district attorney is a state officer charged with enforcing state laws."

IN THE CASE of this particular state law, almost everyone involved agrees that further clarification is needed before it becomes fully workable. "What we want to do is, at the very least, have a system where people can easily confirm that they are legitimate patients, without being detained, interrogated, and having their patient-physician relationship penetrated," says Feinland, "because that's what's happening right now."

Adds activist Alan Silverman: "From the patient perspective, it's scary because it's not being implemented. We seem to have personal agendas crossing into professional conduct. It seems highly improper, but I guess we'll have to wait for the [state] courts to clear that up."

But local law-enforcement officials insist that without court rulings they also are in a bind. "I recognize that the majority of Californians and the majority of Sonoma County voters voted to legalize the medicinal use of marijuana, and I will abide by that law," says Sheriff Piccinini. But at the same time, "we still have to aggressively go out there and enforce the law if they're growing marijuana. It's a pain. I wish the state or the feds would come out with some clear-cut definitions."

There is only one thing, concludes Mullins, that will clear up the rampant confusion that continues to surround the legal use of medical marijuana in California: "Additional legislation."

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From the Dec. 11-17, 1997 issue of the Sonoma County Independent.

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