Medical marijuana violation arrests soar
Editor's Note: This is the first story in a series
Siskiyou County Public Defender Lael Kayfetz has been with the department for nearly two years, and she says that in the past year, arrests and citations for violation of medical marijuana recommendation holders has “quadrupled.”
“Suddenly there has been a huge increase. We've had a couple of dozen in the last year. These are people with prescriptions for medical marijuana,” Kayfetz said. “It appears there has been a change in enforcement policy. 'Why' is a question for the district attorney.”
One of the primary issues, Kayfetz said, are the conflicts between the California Compassionate Use Act Proposition 215 passed by voters and instituted in 1996 and SB 420 that became law in 2004, intended as a guideline for Prop 215.
In addition to the arrests are the issues of secret grand jury indictments versus preliminary hearings, the constitutionality of a state law amending a proposition passed by the people, large commercial growers hiding behind medical marijuana laws, collective and caregiver growing, whether it is proper to charge legitimately sick people with felony possession and cultivation and what happens when a child is in the home of a medical marijuana user.
Siskiyou County District Attorney Kirk Andrus said the county is committed to recognizing medical marijuana.
“We respect the plant count,” Andrus said. “We respect people's right under California law to possess marijuana for medicinal purposes.”
Commercial vs. Medical Growers
Siskiyou County Deputy District Attorney Christine Winte handles all narcotics cases for the county, and she says it is the abuse of the medical marijuana law by commercial growers that is fueling the dramatic rise in arrests.
“Under the guise of medical marijuana, people are doing commercial growing,” Winte said. “They are walking around with an average Siskiyou County annual salary in their pockets. We're not against medical marijuana. We're against people making a profit under the guise of medical marijuana.”
But Kayfetz claims she has had people with cancer and AIDS arrested and charged with felonies and that the majority of medical marijuana cases involve relatively small amounts of the plant.
“The majority of medical marijuana cases I am seeing are less than 20 plants,” Kayfetz said. “People who are obviously not dealers are being brought into court.”
Kayfetz said the defendants are “almost always” charged with a felony cultivation and possession for sale, which carries a three-year prison term, registration as a narcotics offender and loss of HUD housing and no student loans for life.
“A misdemeanor charge is the exception, not the rule. Generally, these are poor people. They get scared and plead out instead of fighting it,” Kayfetz said. “Some are on probation, and they plead out to the marijuana to avoid a probation violation.”
Kayfetz said the misdemeanor penalties are generally a $100 fine and court costs as compared with the potential three years in prison.
Winte said there have been only two cases of legitimately sick people arrested during the recent crackdown.
Under a diversion program for what is determined is an honest mistake by a sick person, Winte said the office will guide them to stay in compliance and, if they do so for a period of time, there is no conviction.
“You are not going to find an officer or DA who wants to prosecute a person with a life-threatening illness,” Winte said.
Kayfetz responds that it is the county's responsibility to determine what is legitimate need to avoid harming a sick person.
“The point is they should never have been arrested,” Kayfetz said. “They had a legitimate recommendation for marijuana that was directly related to a verifiable illness.”
Medical Marijuana Defense
Winte said the six-plant rule can be deceiving, as a single plant can yield far more marijuana than is allowed under certain provisions of SB 420.
“The amount must be reasonable related to the patient's current medical need. We look at the size of the plants. They may appear to be in compliance with the six-plant rule, but we see plants as large as 6 feet tall and 5 feet wide. A single plant can result in 6 pounds of marijuana,” Winte said. “Medical marijuana is not an immunity to arrest or prosecution, but medical marijuana is a defense in court. A jury can decide what is necessary for a patient.”
Winte said a doctor may write on a recommendation that the patient may need more than six plants or 8 ounces under SB 420, “but the doctor will have to come to court to prove that.”
“There are doctors who make an astounding amount of money writing recommendations,” Winte said. “They get $100 to $200 per script and $100 for renewal.”
Deputy Sheriff Adam Zanni, with the North State Marijuana Investigation team that operates under the federally Funded High Intensity Drug Traffic Area Task Force, said law enforcement is using a strict interpretation of SB 420.
Zanni said when officers inspect gardens, they are looking for whether the six-plant limit can yield the 8 ounces allowed for personal use.
“Plants can be trimmed to yield personal use. Keep your plant within personal use limits. Get rid of the excess, and that doesn't mean sell it,” Zanni said. “If they are in compliance, we leave them alone. We leave a lot of gardens alone.”
Winte said the DA's office is available for assistance in helping growers stay within the guidelines.
Zanni noted the federal government has designated Siskiyou County as a high drug-trafficking area.
“Our job is to investigate large-scale marijuana growing both indoors and out,” Zanni said.
Note that the federal government classifies marijuana as a Schedule I drug along with heroin and opium and does not recognize the right of states to legalize marijuana for any purpose. The federal harm schedule considers crack cocaine less harmful than marijuana, as it is a Schedule II drug.
The federal Drug Enforcement Administration is active in enforcing federal marijuana laws, arresting growers, users and operators of medical marijuana dispensaries, despite California laws allowing its use for medical purposes. Depending on amounts, federal penalties range from a misdemeanor to life imprisonment to the death penalty for large criminal enterprises that involve 60,000 or more plants.
Prop 215 vs. SB 420
Winte acknowledged the differences between Proposition 215 and SB 420 and said the county is going with SB 420 because “it gives officers guidelines, as Prop 215 is unclear.”
She noted, however, the constitutional questions that surround SB 420.
“SB 420 may be unconstitutional. Under the state constitution, the legislature may not amend a voter approved initiative without a vote of the people,” Winte said. “But this issue needs to be dealt with on another level. This is something the legislature and the courts need to work out.”
Kayfetz responds that until the issue is sorted out, Proposition 215 should take precedent.
"The voters have spoken. A prudent prosecutor would take the conservative approach by adhering to 215 given the possible Constitutional issues with 420,” Kayfetz said.
Kayfetz said if SB 420 is found unconstitutional, cases where there has been a trial and conviction would be thrown out. Where defendants plead out, however, those convictions would stand, she said.
“There is a glut of cases in Siskiyou County pending resolution of SB 420 and Prop 215,” Kayfetz said. “We are in unknown territory. There is no binding precedent yet.”
District Attorney Kirk Andrus said it is simply beyond the means of a small county like Siskiyou to force the constitutional issue in court.
“It has yet to be litigated,” Andrus said. “We don't have the legal resources to fight this.”
Caregivers and Collective Growing
Another area where the county has taken a strict view is with collective and caregiver growing.
Collective gardens, where several people grow marijuana together under the six-plant rule, is allowed under both laws, as is caregiver growing, where a grower provides marijuana for a sick person.
Zanni said the issues are clear under the guidelines.
“Caregivers may grow for more than one person, but they must be able to show they are caring for the health, safety and welfare of each person on the recommendation,” Zanni said. “Collective growing is within the law as long as each person on the recommendation takes care of their own plants.”
Winte added that a caregiver must be a resident of Siskiyou County.
Kayfetz said her experience shows that law enforcement is not taking the time to determine whether the collective grower or caregiver is legitimate.
“What we are seeing is law enforcement refusal to recognize collective growing,” Kayfetz said. “There is the absence of any effort to investigate the caregiver or collective growing prior to the arrest. They are shifting the burden of proof to the defendant.”
Grand Juries vs. Preliminary Hearings
Kayfetz said the legal process by which medical marijuana patients are brought to court has made if difficult to properly defend the accused.
“Instead of a preliminary hearing, they are using the grand jury to indict. We come into court and there is already a felony indictment,” Kayfetz said.
Kayfetz says circumventing the preliminary hearing doesn't give defendants adequate rights in disputing the charges before there is an indictment.
“A preliminary hearing is to find probable cause. A judge can determine whether there is reasonable suspicion that a crime has been committed. The burden of proof is on the state. At the preliminary hearing, the defense has the right to cross examine prosecution witnesses and to put evidence for the defense such as a medical recommendation,” Kayfetz said. “A grand jury is a secret proceeding. There is no cross examination or testing of evidence. A jury sees both sides. A grand jury sees only what the prosecution presents. The prosecution, for example, will choose not to present evidence of collective growing or caretaker status. There is no venue for testing the evidence short of a trial.”
Andrus defends the grand jury process by saying it streamlines court time and provides a citizen view of the issue.
“One of the reasons we use this is because of the volume of cases. They are labor intensive because of the politics involved. Even if a defendant is far, far out of compliance, they bring in experts, doctors and specialized attorneys. It gets very expensive for the county. When we take these cases to preliminary hearings, the time goes up exponentially,” Andrus said. “We also get the public take on the issue. We can see what the public wants to do with these cases. We get to see how a jury reacts.”
Kayfetz said, however, that the absence of a preliminary hearing can lengthen court procedures.
“In grand jury cases, we file two further motions for another hearing. If they are denied, we file a writ with the appeals court,” Kayfetz said. “The whole process of saving a hearing creates a hearing. It doesn't decrease litigation or speed up the process.”
Andrus said an additional issue arises when a child may have contact with medical marijuana.
“Child endangerment is an issue with marijuana. Marijuana should be treated as dangerous for children,” Andrus said. “If we feel a child has been exposed to marijuana, we will pull the plants as evidence and make an arrest for child endangerment. Child Protective Services is called in and they make a determination as to what to do with the child.”
Andrus added, “There is a lot of tension over this issue.”
Kayfetz says the child issue is being abused in some cases. She uses as an a example the hypothetical case of a man with cancer who is not growing and gets marijuana from a collective.
“A small amount of marijuana might be found in the home and the child is taken away,” Kayfetz said. “I have seen cases where there is no evidence that it was around the child.”