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A state appeals court on Tuesday dismissed the conviction of a 64-year-old Whitman County motel owner who grew marijuana to treat his glaucoma.
The Washington state Court of Appeals District III said Loren Hanson was denied a medical marijuana defense in Whitman County Superior Court.
Hanson's Spokane attorney, Frank Cikutovich, said it may be the first successful "affirmative defense" of a medical marijuana case in Washington state.
"We couldn't be more happy, considering the client," who is in poor health and allergic to other medications used to relieve eye pressure that causes blindness, Cikutovich said.
With the advice of his doctor who diagnosed glaucoma, Hanson began growing marijuana for his personal use in 2004. Hanson said he took it externally, allowing the smoke to waft around his face.
Glaucoma is one of the conditions specified under the state's Medical Marijuana Act that resulted from the passage of Initiative 692 nine years ago.
But on Aug. 24, 2004, the Quad Cities Drug Task Force raided Hanson's business, the Manor Lodge Motel in Pullman, while Hanson was away. Detectives seized 34 mature plants and cultivation equipment.
The following day, Hanson obtained written authorization for marijuana use from his doctor and turned himself in to the Whitman County Sheriff's Office. Despite the doctor's letter, he was charged with felony manufacture of marijuana.
Whitman County Superior Court Judge David Frazier denied admission of the after-the-fact marijuana prescription, effectively denying Hanson a medical marijuana defense.
On Tuesday, the appeals court ruled that Hanson was a "qualifying patient" under the Medical Marijuana Act, which only requires that he qualify, that he possess no more than a 60-day supply and that he present valid documentation when law enforcement asks for it.
Cikutovich and his partner, attorney Patrick Stiley, also argued that the Medical Marijuana Act effectively repeals the classification of marijuana as a Schedule I drug. Such drugs, by legal definition, have no medical use. The attorneys argued the Medical Marijuana Act clearly refutes that.
But the appeals court was unwilling to go that far. In the opinion, authored by Judge Dennis Sweeny and with Judge Kenneth Kato concurring, the court said the Medical Marijuana Act "recognizes that there are still inherent risks in using marijuana" and does not supersede state law on its manufacture, sale or possession for nonmedical purposes.
In a dissenting opinion, Appeals Court Judge Stephen Brown said the lower court did not err in prohibiting admission of Hanson's after-the-fact prescription, which was insufficient to support an affirmative defense.
Whitman County Deputy Prosecutor Byron Bedirian had not had time to study the opinion and therefore could not say whether he would appeal to the state Supreme Court.
He did say that he hoped the decision provides clarity to the Medical Marijuana Act.
"If we can give law enforcement and medical marijuana patients' guidance, there is utility in that," Bedirian said.
Newshawk: CoZmO - 420Magazine.com
Source: Spokesman-Review (WA)
Author: Kevin Graman
Contact: kevingr@spokesman.com
Copyright: 2007 The Spokesman-Review
Website: SpokesmanReview.com
The Washington state Court of Appeals District III said Loren Hanson was denied a medical marijuana defense in Whitman County Superior Court.
Hanson's Spokane attorney, Frank Cikutovich, said it may be the first successful "affirmative defense" of a medical marijuana case in Washington state.
"We couldn't be more happy, considering the client," who is in poor health and allergic to other medications used to relieve eye pressure that causes blindness, Cikutovich said.
With the advice of his doctor who diagnosed glaucoma, Hanson began growing marijuana for his personal use in 2004. Hanson said he took it externally, allowing the smoke to waft around his face.
Glaucoma is one of the conditions specified under the state's Medical Marijuana Act that resulted from the passage of Initiative 692 nine years ago.
But on Aug. 24, 2004, the Quad Cities Drug Task Force raided Hanson's business, the Manor Lodge Motel in Pullman, while Hanson was away. Detectives seized 34 mature plants and cultivation equipment.
The following day, Hanson obtained written authorization for marijuana use from his doctor and turned himself in to the Whitman County Sheriff's Office. Despite the doctor's letter, he was charged with felony manufacture of marijuana.
Whitman County Superior Court Judge David Frazier denied admission of the after-the-fact marijuana prescription, effectively denying Hanson a medical marijuana defense.
On Tuesday, the appeals court ruled that Hanson was a "qualifying patient" under the Medical Marijuana Act, which only requires that he qualify, that he possess no more than a 60-day supply and that he present valid documentation when law enforcement asks for it.
Cikutovich and his partner, attorney Patrick Stiley, also argued that the Medical Marijuana Act effectively repeals the classification of marijuana as a Schedule I drug. Such drugs, by legal definition, have no medical use. The attorneys argued the Medical Marijuana Act clearly refutes that.
But the appeals court was unwilling to go that far. In the opinion, authored by Judge Dennis Sweeny and with Judge Kenneth Kato concurring, the court said the Medical Marijuana Act "recognizes that there are still inherent risks in using marijuana" and does not supersede state law on its manufacture, sale or possession for nonmedical purposes.
In a dissenting opinion, Appeals Court Judge Stephen Brown said the lower court did not err in prohibiting admission of Hanson's after-the-fact prescription, which was insufficient to support an affirmative defense.
Whitman County Deputy Prosecutor Byron Bedirian had not had time to study the opinion and therefore could not say whether he would appeal to the state Supreme Court.
He did say that he hoped the decision provides clarity to the Medical Marijuana Act.
"If we can give law enforcement and medical marijuana patients' guidance, there is utility in that," Bedirian said.
Newshawk: CoZmO - 420Magazine.com
Source: Spokesman-Review (WA)
Author: Kevin Graman
Contact: kevingr@spokesman.com
Copyright: 2007 The Spokesman-Review
Website: SpokesmanReview.com
