A 'Serpentine Road Map' For Medicinal Marijuana Users

Wednesday, July 8, 2009 | In theory, life should be getting easier for San Diegans who want to buy, grow, sell, transport or smoke marijuana for medicinal purposes.

Last year, California Attorney General Jerry Brown issued long-awaited guidelines aimed at clarifying the state's laws on medicinal marijuana. In February, the Obama Administration made it clear that medicinal marijuana users are not a priority for federal law enforcement agencies when Attorney General Eric Holder announced that the Justice Department would no longer prosecute medicinal marijuana cases in federal court.

And, last month, the San Diego County Board of Supervisors lost its long-running legal battle with the state over the issuance of marijuana patient ID cards. Grudgingly, the supervisors gave the order to begin issuing the cards, which are required by a state law passed in 2003. The first cards were handed out last week.

But despite all of this, local attorneys and medicinal marijuana advocates say the county's enforcement of the state's medicinal marijuana laws remains as confusing as ever. And, compared to most other California cities, San Diego is still a perilous place for those who grow and distribute pot for medical purposes.

"A judge in a case I had recently said that while there is a road map for local patients to follow to stay legal, it's a serpentine road map," said Gerald Singleton, a local attorney who has represented several medicinal marijuana activists.

Most big California cities have seen an increase in the number of medicinal marijuana dispensaries within their borders in the last year. That has not been the case in San Diego County, where new dispensaries are routinely raided and prosecutions by the District Attorney's Office have not slowed over the past year.

Damon Mosler, former head of the San Diego District Attorney's Narcotics Division, said the DA has continued prosecuting people who flaunt the medicinal marijuana laws instead of easing up on such prosecutions as has happened elsewhere in the state.

Prosecutors elsewhere in the state say a difference in workloads, not a difference in opinion on medicinal marijuana use, is the reason behind the disparate approaches to enforcement.

Joseph Esposito, head deputy district attorney for major narcotics at the Los Angeles District Attorney's Office, said the sheer numbers of dispensaries and medicinal marijuana clubs and cooperatives that have sprung up in Los Angeles has made prosecuting those who abuse the new medicinal marijuana laws extremely challenging.

In San Diego, where far fewer dispensaries have opened their doors, the District Attorney's Office appears to be ahead of the curve when it comes to prosecuting medicinal marijuana-related cases, Esposito said.

"The direction they are taking seems to be consistent with what most law enforcement believes to be correct, they just started early," Esposito said.

But local activists and lawyers have another theory. They argue that the District Attorney's Office has turned a blind eye to the protections introduced by the medicinal marijuana laws because it remains married to the concept of pot as an inherently dangerous substance that should be illegal in all cases.

The County Board of Supervisors, which controls the DA's budget, has held a consistently combative stance against the state on the issue of medicinal marijuana.

In 2006, the county sued the state over Proposition 215, the Compassionate Use Act, which legalized marijuana use for medicinal purposes, claiming that federal law trumped state law on the issue.

The county also sued the state over the issuance of the medicinal marijuana patient ID cards, which are designed to allow medicinal marijuana users access to pot anywhere in the state and help patients avoid arrest. The county gave up its legal battle after the state Supreme Court refused to hear the case, but not before its campaign against medicinal marijuana attracted attention from the Bush Administration, which praised the actions of the Board of Supervisors.

Singleton cited two recent arrests to support his stance that ideology, not the law, continues to drive prosecutions in San Diego.

Eugene Davidovich and Dion Markgraaff were both recently arrested for growing or selling marijuana. Both claim they followed state law and the attorney general's guidelines faultlessly, but that it did little good.

Davidovich set up a collective to grow and sell marijuana last year after reading the new guidelines, which clarify how much pot an individual can grow and sell and in what circumstances. He said he figured he could follow the rules and stay legal.

But Davidovich was arrested in February after selling marijuana to an undercover San Diego police officer. He said the officer provided documentation issued by a doctor that showed he was entitled to receive marijuana to use for medicinal purposes. Davidovich said he had agreed to let the officer join his collective as a fellow patient.

"I followed the law 100 percent, I didn't distribute, I only sold to qualified patients, I followed the attorney general's guidelines word-for-word and I still got arrested," Davidovich said, "There isn't a single person in this county who's been able to tell me how to grow marijuana legally."

Davidovich is a relative newcomer to the world of medicinal marijuana activism. But veteran campaigner Markgraaff is no stranger to state medicinal marijuana laws. He's the director of the local chapter of Americans for Safe Access and publishes a magazine about marijuana. He's fought for medicinal marijuana for two decades and has been arrested several times for his activism.

Officials at the District Attorney's Office know Markgraaff well. Mosler previously prosecuted him and has spoken with Markgraaff dozens of times. On one occasion, Mosler said, Markgraaff convinced a judge to order Mosler to return a pound of his marijuana, which he did.

Last week, Markgraaff was arrested for the third time in the United States after a sheriff's deputy found several pot plants growing in a garage at his home in Vista.

Singleton, who is Markgraaff's attorney, said the fact that his client was arrested for growing medicinal marijuana in his own home shows local law enforcement's disregard for the shifting pot paradigm in California. That's especially true since Markgraaff was carrying a state-issued medicinal marijuana ID card at the time of his arrest and is well-known as a legitimate medicinal marijuana patient, Singleton said.

"He was complying with the law. They know him, and it would have been very easy for them to corroborate everything he said about why it was legal for him to be growing marijuana," Singleton said. "The fact that they didn't do that suggests to me that they were motivated by their political beliefs about marijuana, not by the law."

Capt. Tim Curran of the Vista Sheriff's Station said he was not familiar with the circumstances of Markgraaff's arrest. Curran acknowledged that some "beat" police officers might still be coming to grips with the new shifts in medicinal marijuana laws, but said the department has experts who are on-call to deal with these sorts of cases as and when they show up.

"This is still evolving, it's in motion" Curran said. "Will it get to the point where it's black and white? I hope so."

Following department protocol, Mosler said he couldn't comment on the two men's cases. He said in many cases individuals start growing and distributing marijuana in ways that are legal, but that many such dealers eventually begin selling the drug for a profit, which is illegal under state law.

"Sooner or later, greed sets in and they realize how much money they can make," Mosler said.

Davidovich's preliminary hearing is set for July 13. Markgraaff's arraignment was held Tuesday. His preliminary hearing is set for July 21.

Please contact Will Carless directly at will.carless@voiceofsandiego.org with your thoughts, ideas, personal stories or tips. Or set the tone of the debate with a letter to the editor.