Buzzby

Man Contests Pot Bust
HIV victim says passage of initiative legalized possession
Alan Gathright | Rocky Mountain News | 03/24/2006

An HIV-positive man who says he uses pot to combat nausea from powerful antiviral drugs is the second Denver defendant to challenge a pot possession bust under state law since voters changed the city's marijuana statutes in November.

David "Damien" La Goy, 46, a Capitol Hill resident who voted for Initiative 100, which legalized the possession and private use of small amounts of marijuana by adults, said that when he's arraigned in a Denver court this morning, he'll ask for a jury trial.

"The city is not listening to the voters," said La Goy, whose HIV infection and its debilitating treatment have reduced his 5-foot-8 frame to 113 pounds.

"To be quite honest with you, I threw up this morning, and my health has to come first," he said, pointing out that smoking marijuana helps with his nausea. "I'd hoped (the passage of I-100) had settled this issue once and for all, but it hasn't."

La Goy is not registered under Colorado's 5-year-old medical marijuana law and does not plan to use his condition in his defense.

In January, Denver dropped the prosecution of marijuana advocates' first test case, against Eric Footer, 39, who said he thought the voter-approved measure made it legal for him to use pot for back pain.

A city prosecutor said he dismissed the case because he was worried that police officers would have trouble showing sufficient probable cause to justify the search of Footer's car, where the marijuana was found.

Yet, attorney Brian Vicente, who defended Footer and is representing La Goy for free, said the city had no legal reason to drop the first case because Footer agreed to the vehicle search.

Vicente, who heads the marijuana legalization group Sensible Colorado, thinks city officials were wary of taking on the Footer case so soon after voters approved I-100.

But Kathy Sasak, assistant director of the city attorney's prosecution unit, said her team will be arraigning more than a dozen marijuana possession cases today.

"We will continue to prosecute them under the state statute," she said. "We'll analyze each case on its facts."

Under state law, possession of less than an ounce of marijuana is a petty offense, akin to a traffic ticket. Violators face about $240 in fines and court costs.

La Goy said he was busted on the evening of March 3 at a friend's Capitol Hill apartment when Denver police arrived to investigate the friend on an unrelated probation issue and found La Goy's baggie of marijuana on the living room floor.

"My friend tried to take the blame by saying it was his. And I said, 'No. You don't lie to the police. It's mine,' " La Goy recounted at a neighborhood coffee shop.

With him Thursday were Vicente and Mason Tvert, campaign director for Safer Alternative for Enjoyable Recreation - or SAFER - the group that spearheaded the I-100 campaign.

SAFER is now gathering signatures to place a statewide measure on the November ballot to make it legal for people 21 or older to possess 1 ounce or less of pot.

La Goy said one officer asked his partner, "Do we really want to mess with him on the pot" or just "take care of what we were called for?" But the investigating officer ignored the suggestion.

"I told him I'm HIV (positive) and he said: 'Well, is that any excuse to smoke pot?' " La Goy recalled.

"According to 57 percent of Colorado voters, it is," Tvert chimed in during Thursday's interview, referring to the passage of a medical marijuana initiative in 2000 allowing the sick to use the drug with a doctor's written approval.

"It is just a gross example of the police wasting taxpayer dollars pursuing individuals like Mr. La Goy, who is very ill, in direct violation of the recent vote by Denver voters," said Vicente, the defense attorney.

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