07/14/2005
Oakland
Tribune
Medical
marijuana battle catching fire
Pot activists
try to prevent CHP's taking drug from patients
By Josh
Richman, STAFF WRITER
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.
--
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