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Medical Marijuana Battle Catching Fire
Pot activists try to prevent CHP's taking drug from patients
Josh Richman | The Daily Review | 07/14/2005

Medical marijuana advocates are mounting a double-barreled attack this week on what they say is California's reticence to uphold its own compassionate use law, putting Attorney General Bill Lockyer in the hot seat.

On one front, Oakland-based Americans For Safe Access filed papers Wednesday in Alameda County Superior Court seeking an injunction to halt the California Highway Patrol's policy of seizing marijuana from qualified patients, even if those patients have county-issued ID cards or a doctor's recommendation.

The ASA claims the CHP blatantly ignores a state Supreme Court decision which said an officer's probable cause to seize marijuana depends on facts including presentation of documents identifying the person as a qualified patient.

It also notes that Lockyer — whose office defends the CHP in this lawsuit — issued a formal opinion June 23 saying cities can prohibit their police from seizing medical marijuana, but can't automatically seize marijuana from or arrest people who don't have voluntary ID cards because that would directly contradict state law.

"The CHP policy of seizing marijuana from qualified patients even when they present a valid identification card is even more at odds with state law, since no amount of proof can avoid a mandatory seizure," the ASA's filing says.

And the filing claims the CHP ignores bulletins Lockyer issued to California law enforcement agencies last month after a U.S. Supreme Court decision upholding the federal marijuana ban. In those bulletins, Lockyer wrote that California's law still stands and police should avoid making seizures and arrests when it seems someone is legitimately using a medically authorized, reasonable amount of marijuana under state law.

So who's right, the lawyer or the client? Lockyer spokeswoman Teresa Schilling would only say Wednesday that the attorney general is duty-bound to defend the state and its agencies against lawsuits; she referred further questions to the CHP.

CHP spokesman Lt. Joe Whiteford said the CHP will honor only the 123 voluntarily-sought medical marijuana identification cards issued so far by the Department of Health Services under a 2003 state law. Officers will keep seizing marijuana from anyone else. He wouldn't comment on the apparent conflict with Lockyer's bulletins.

Meanwhile, two other national groups — the Drug Policy Alliance and the American Civil Liberties Union — wrote to Gov. Arnold Schwarzenegger on Tuesday with a threat to sue the state for suspending the very ID card program the CHP says it's honoring.

The ID card program was just about to expand from a four-county test run to statewide implementation. But state Health Services Director Sandra Shewry last week halted it, claiming the need for Lockyer to confirm that state and county employees who issue the cards won't be subject to federal prosecution following the U.S. Supreme Court ruling.

The DPA and ACLU also cite Lockyer's bulletins that state officials "may not refuse to abide by the provisions of the Compassionate Use Act on the basis that this Act conflicts with federal law." DPA legal director Daniel Abrahamson of Oakland said it's "shameful" that court action might be needed to force the state to honor its own laws.

The groups' letter said they'll sue if the ID card program isn't reinstated by the close of business Tuesday. Schilling said Wednesday that Lockyer's office is working "as fast as we can" to issue an opinion on the program.

Contact Josh Richman at jrichman@dailyreviewonline.com.

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killer12382

I can see this case and ones similar to this one work its way through the court system and end up in the US Supreme court where state med pot laws will eventually be overturned. This is alot like playing Candyland except no one wins except the lawyers.

Lothar121

The Supreme Court would have struck down the state laws had they found them unconstitutional. This is a state issue about state law and state officials not following them. It has nothing to do with Federal law which is why the suits are being threatened and filed. The state does not enforce Federal law.

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killer12382

I heard the same arguements concerning the last fight that went to the supreme court.