R.I. judge upholds gun rights of medical-pot growers
PROVIDENCE — A recent Cranston case that tested the state’s medical-marijuana law raises a question about whether people with the right to grow or possess marijuana to treat illnesses risk being jailed for owning a gun, even if they own it lawfully.
The issue grew from Dean Derobbio’s arrest in January 2010 for allegedly conspiring with his roommate to possess marijuana with the intent to sell it. He was also charged with carrying a dangerous weapon while committing a crime of violence. The crime of violence was growing marijuana, according to prosecutors and the police, and the charge carries a mandatory three years in prison for a defendant convicted of a first offense.
The police charged Derobbio’s roommate, Joseph Joubert, with conspiracy and possessing marijuana with the intent to deliver.
Derobbio held a patient card issued by the state Department of Health to use marijuana to treat severe pain caused by ruptured disks in his back, and he legally owned a 9mm pistol he kept in his nightstand, according to his lawyer, Michael F. Campopiano. Joubert had a primary-caregiver card, allowing him under the state’s medical-marijuana act passed by lawmakers in 2006 to grow marijuana for Derobbio.
The law spells out how much marijuana a person can grow and possess, but says nothing about guns. It, too, does not specify whether a patient can have two caregivers growing marijuana for him, as Derobbio did.
Superior Court Judge Robert D. Krause seized upon those omissions in tossing out the charges earlier in May.
“In my opinion,” Krause said, “this is a poorly drafted statute, and I don’t think ... a defendant ought to be criminally liable for inartful draftsmanship.”
He rejected the state’s argument that Derobbio could be pursued on the gun charge even if the court found he had the right to possess the marijuana and the pistol.
“If I were to find that there was nothing unlawful about what these defendants had done by way of the medical-marijuana statute, and that they were within the framework of the statute, and did not exceed the amount of plants that are authorized, would you still pursue the prosecution [of the gun charge]?” Krause asked Special Assistant Attorney General Michael McCarthy at the May 4 hearing.
“With all due respect, your honor, I would,” McCarthy said. He explained that he would prosecute it under a law that says you cannot legally grow marijuana while being in possession of a firearm.
“And, your honor, if you are cultivating marijuana, and if you are in possession of a firearm, even though [the medical-marijuana act] has stated you can grow marijuana, it is silent as to whether or not you can possess a firearm,” McCarthy said, according to a transcript of the hearing.
Krause continued, “If you meet the requirements, if you have possession of plants that are within the legal limit under this marijuana act, and if you have a firearm at home, and you’re not a convicted felon, both of these are legal, yes?”
“Yes,” McCarthy said.
“But, nonetheless, you claim it’s criminal conduct.” Krause said.
“As is being intoxicated in possession of a firearm,” McCarthy said.
In the end, Krause found that the 33 mature plants being grown at the 101 Marlow St. house by Joubert and his mother, Marie Joubert, fell within the legal limits of the medical-marijuana law since caregivers can have 24 plants apiece.
Throw me in jail, marijuana minister tells court
A man who promotes marijuana as a church sacrament asked to be sent to jail Monday rather than serve a community sentence.
Shahrooz Kharaghani, 32, was found guilty of trafficking marijuana and hashish in a Queen St. E. neighbourhood.
If sentenced to house arrest he would immediately smoke pot to commune with God, violating a condition to “keep the peace and be of good behaviour,” his lawyer told a sentencing hearing.
Such a violation would mean going to jail, so he might as well go to jail straightaway, lawyer George Filipovic argued before Ontario Superior Court Justice Thea Herman.
“These are not typical sentencing submissions,” Herman said from the bench, apparently taken by surprise.
Kharaghani and co-accused Peter Styrsky, 53, call themselves ministers in the Assembly of the Church of the Universe, which they say serves 4,000 congregants across Canada.
For Styrsky, also convicted of trafficking in a case dating to 2006, both sides argued for a six-month sentence, which would amount to immediate release because of time served in pre-trial custody.
For Kharaghani, Crown prosecutor Nick Devlin was recommending a six-month community sentence, which would likely involve one or two months of house arrest and afterward a curfew.
“It is very unusual that the Crown would be saying the jail sentence should be served in the community,” Devlin said outside the courtroom, “but in this case we don’t think Mr. Kharaghani is somebody who needs to be behind bars.”
Colorado May Become The New Pot Legalization Battleground
Medical Marijuana Clubs Getting Schooled?
Category: Medical Marijuana | Posted on Fri, May, 13th 2011 by THCFinder
To understand the insanity at the heart of California's love-hate relationship with medical marijuana, one need look no further than a low-end strip mall on Raymond Way just off El Toro Boulevard near Interstate 5 in Lake Forest. It's a somewhat decrepit-looking series of stores that stretches around the parking lot, one corner of which is occupied by a Montessori school. It's easy to miss that five of the storefronts belong to marijuana clubs.
Although marijuana is illegal under federal law, it's legal for medical purposes in California, and Lake Forest, which is one of only two Orange County cities (the other is Dana Point) that don't require business licenses, has no ban against cannabis clubs on the books. Such apparent laxity may explain the huge influx of them over the past few years, which has left city officials scrambling to sue them out of existence, alleging they violate Lake Forest's municipal code, leading to a legal standoff that is likely to last years.
In May 2010, Orange County Superior Court Judge David Chaffee ruled in favor of Lake Forest and ordered the clubs to shut down. Several of them voluntarily closed, but others appealed the decision and were allowed to reopen. Then, on Jan. 1, a new state law took effect banning pot clubs from operating within 600 feet of a school. On April 26, citing the fact that the five dispensaries that continued to operate at the Raymond Way location were next door to the Montessori school, Chaffee issued a temporary restraining order against them; the clubs shut down once again.
But on May 9, Chaffee lifted the temporary order against those clubs until he could sort out all the competing legal claims being made by lawyers for both the city and the clubs. The dispensaries immediately opened for business. The hearing is scheduled to resume on Friday.
The most basic question is whether the marijuana clubs pose a public "nuisance," as claimed by lawyers for Lake Forest, or if they are providing a vital service for residents in South County, where medicinal cannabis is becoming harder to obtain. "These businesses are a nuisance," Jeffrey Dunn, an attorney for Lake Forest, told Chaffee at the May 9 hearing. "There have been thefts and burglaries at these dispensaries, [plus] public urination and an assault on a police officer."
Lawyers for the five clubs make the opposite claim. "Because Lake Forest doesn't have a ban on medical marijuana, there is no way for them to effectively argue you can't do business in their city," said Christopher Glew, who represents two of the clubs, Cafe Vale Tudo and Florentina Organic, as well as collectives elsewhere in the city. "For the city to do that, it has to take the affirmative step of initiating a ban or some type of restriction on that activity, which they haven't done yet."
It's Official: Maryland Becomes 15 and a Half Medical Marijuana State
Category: Medical Marijuana | Posted on Fri, May, 13th 2011 by THCFinder
Governor O'Malley Signs Bill as Maryland Becomes "15th and a Half" Medical Marijuana State
Qualified patients still susceptible to arrest, prosecution and $100 fine despite medical defense
Annapolis, MD -- Governor O'Malley signed Senate Bill 308 into law yesterday, making Maryland the "15th and a half" medical marijuana state according to advocates. The Maryland legislature passed SB 308 in April attempting to improve upon the current Darrel Putnam Compassionate Use Act, which allows for a "medical necessity" defense but can still result in a misdemeanor conviction and a $100 fine. The new law is aimed at removing the misdemeanor conviction, but qualified patients can still be forced to pay a punitive fine.
"The patient community welcome improvements to Maryland's medical marijuana law," said Kristen Ford, Field Director with Americans for Safe Access, the country's largest medical marijuana advocacy group. "But, because patients are still forced to undergo arrest and criminal prosecution and may sustain punitive fines, the law falls short of the basic protections offered in all other medical marijuana states."
SB 308 had previously been a more robust bill, protecting qualified patients from arrest and prosecution and establishing a system of licensed cultivation and distribution, but was whittled down due to objections from the new administration's Department of Health and Mental Hygiene (DHMH) and House committee members. In order to get SB 308 passed out of the House Judiciary Committee, where several similar bills had died over the past 7 years, legislators adopted several restrictive amendments.
For example, SB 308 now caps possession amounts at one ounce, down from 6 ounces in previous versions of the bill, and excludes patients above the one ounce limit from using the affirmative defense. The amendments also deny an affirmative defense to patients consuming their medication in public. "It's shameful that the Maryland legislature wants to treat medical marijuana patients like criminals by condoning their arrest and excluding some patients from an affirmative defense, still leaving them vulnerable to conviction and a punitive fine," continued Ford. "Nevertheless, we will continue to work with the health department and the legislature to craft a more patient-friendly bill next year."
SB 308 requires DHMH to convene a Work Group to "develop a State-specific proposal, including draft legislation, for providing access to marijuana to patients in the State for medical purposes." A report to the legislature will be due by year's end, and the program must be up-and-running by January 2013. "This bare-bones law is just a stop-gap measure," continued Ford. "Now the difficult work begins in finding consensus on a more comprehensive and protective bill."
Marijuana groups want jury to decide if federal raids violated rights
Category: Medical Marijuana | Posted on Thu, May, 12th 2011 by THCFinder
Some of the businesses caught in a raid on medical marijuana shops want a federal jury to decide whether the arrests and seizures violated their constitutional rights.
That's just one of several requests listed in a lawsuit filed by the Montana Caregivers Association and MCM Caregivers in U.S. District Court in Missoula this week.
The suit follows a series of raids directed by the Department of Justice at medical marijuana shops and growing operations in Missoula, Kalispell, Bozeman and other Montana cities in late March.
Agents from the FBI, Drug Enforcement Agency and other federal agencies, along with support help from local law enforcement, seized cash, equipment and marijuana in the raids, which happened over the space of two days.
In the suit, the plaintiffs are accusing the federal government of making the raids at the same time the Montana Legislature was considering a repeal of the state's medical marijuana laws, which were approved by voters.
The plaintiffs say "the federal government has made clear its intent to threaten and eventually eliminate any business or enterprise related to the medical use of marijuana."
The court documents include a letter sent to Montana lawmakers from U.S. Attorney for Montana Michael Cotter explaining prosecution of illegal drug trafficking is a "core priority" of the U.S. Justice Department. In the letter Cotter says the "core priority includes the prosecution of business enterprises that unlawfully market and sell marijuana".
The federal government still considers any growing, distribution or possession of marijuana in "any capacity" to be a violation of federal law.
The caregivers groups claim in the suit that the raids violated several sections of Constitutional law and asking the court to issue an injunction to prevent the feds "from threatening, interfering with, retaliating against, prosecuting or penalizing Plaintiffs or other similarly situated persons for any acts or activities authorized and permitted under the laws of Montana." They're also asking for damages to be awarded by the court.
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