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August 2, 2015

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Medical marijuana issue tangled in courts, Legislature

Attorneys predicting Nevada Legislature will clarify law

Image

Steve Marcus

Medical marijuana is shown in a home in this 2010 file photo.

Judge Donald Mosley asks a question to attorneys during a bail hearing for Leonard Schwingdorf in District Court Wednesday, Sept. 28, 2011. Schwingdorf is among defendants facing charges in connection with distributing medical marijuana.

Judge Donald Mosley asks a question to attorneys during a bail hearing for Leonard Schwingdorf in District Court Wednesday, Sept. 28, 2011. Schwingdorf is among defendants facing charges in connection with distributing medical marijuana.

A ruling that Nevada’s medical marijuana law is unconstitutional has put the issue before the state Supreme Court and has lawmakers again pushing to clarify how patients can legally obtain the drug.

After several medical marijuana dispensaries set up shop around Las Vegas in recent years, a task force from the Metro Police Department and the District Attorney’s Office began working with federal authorities on a series of high-profile raids.

The busts began about two years ago to snuff out the pharmacy-like outlets and grow operations sprouting around the valley.

But contradictory rulings by two Clark County District Court judges have sent some of the pending criminal cases to the Nevada Supreme Court, which is expected to start sorting out the matter this summer.

Will it end there? Several people tracking the issue — including a Las Vegas state lawmaker — say no.

They predict the 2013 Nevada Legislature, not the Supreme Court, will be the real battleground for spelling out what voters intended when they approved the use of medical marijuana in 2000 with a 64 percent majority, opening a Pandora’s box for interpreting what is allowed under the law.

“The people in Nevada have voted to legalize the use,” said Assemblyman Paul Aizley, D-Las Vegas. “Let’s see if we can set up a system to provide it just the way we can get any other type of legal prescription drugs. The way we’re doing it now just doesn’t make sense.”

Fixing the law

Nevada is one of 17 states and the District of Columbia that have enacted laws for the use of medical marijuana, after Californians first approved it in 1996. Thirteen of those states, including Nevada, have state registries for those wanting to obtain medical marijuana.

Eleven states, including California and Arizona, allow dispensaries. Nevada does not.

At the federal level, marijuana is still classified as a Schedule I drug, a category for substances considered to have a high potential for dependency and that have no medical use.

That means even Nevadans with state-issued medical marijuana cards can technically be arrested by federal authorities. The Obama administration, however, has instructed federal prosecutors not to go after people who distribute marijuana for medical purposes in states that allow it.

Under Nevada law (NRS 453A), people who need marijuana for medicinal purposes are allowed to grow their own plants and to possess up to an ounce of marijuana. The law, however, allows no legal way to buy the seeds or purchase marijuana for those who can’t grow it themselves.

Aizley and six other state lawmakers co-sponsored a bill last year to give “caregivers” the right to grow and share marijuana with more than one patient. Under the current law, a caregiver can grow for only one person.

Proponents of changing the law say it’s difficult to grow medicinal-quality marijuana, and many people fail at growing their own.

But other matters took precedence during the 2011 Legislature, and the medical marijuana bill never got a hearing.

Aizely said he will try again to push the same bill that would give caregivers the right to grow and share marijuana.

“Things have changed. I think there might be more of a response now,” Aizley said. “I’m not a user. I’m doing this for the people who need medicine and are having trouble getting it. That is my motivation.”

There has also been talk among high-ranking state Republicans to explore whether marijuana should be decriminalized.

Assemblyman Tick Segerblom, a Las Vegas Democrat running for the 3rd District seat in the state Senate, said he has directed the legislative research staff to draft a bill that would license dispensaries to buy or grow marijuana legally and sell it legally to Nevada residents with state medical marijuana cards.

“We’re still working on the mechanics of it,” Segerblom said.

The research staff is looking at laws that license dispensaries in Colorado and Arizona to provide something similar in Nevada, he said. Most likely, people who get state medical marijuana cards would be able to buy up to an ounce, he said.

Segerblom said he also has directed the research staff to determine what that change in the law would mean for state revenue.

Currently, there are about 3,500 people who purchase a medical marijuana card for $150 a year, which brings in about $525,000 to the state. If dispensaries made marijuana more easily available, more people would get cards, generating more revenue for the state, he said.

There is also the possibility of taxing those who grow and sell marijuana, he said.

“The reality is, it is going to be a multimillion-dollar revenue source,” he said. “We need to look at all avenues to bring in money for the general fund.”

Supreme Court challenges

Two court cases are pending before the Supreme Court as the result of contradictory rulings issued by Clark County District Judge Doug Smith and former District Judge Donald Mosley.

Smith let a case involving the Jolly Green Meds dispensary move forward through the District Court process. Mosley threw out a similar case involving the Sin City Co-op dispensary, calling the state law unconstitutional.

On Sept. 27, 2011, Smith allowed an indictment stand against six people arrested in the police raid of Jolly Green Meds, but he hinted at the difficulty he had reaching a decision. The case has been appealed to the state Supreme Court.

The other case before the Supreme Court came about when Mosely, on March 2 — his last day on the bench — ruled on the Sin City Co-op case. Mosley dismissed drug trafficking and other charges against two people, Leonard Schwingdorf and Nathan Hamilton, and said the law was unconstitutional.

Mosely’s order said the state law was “poorly contemplated or purposefully constructed to frustrate the implementation of constitutionally mandated access to the substance.”

Schwingdorf and Hamilton operated Sin City Co-op, where those with state-issued medical cards believed they could legally buy marijuana.

Co-op organizers accepted donations to provide members with marijuana. But prosecutors say the donation constituted a sale, which violates state and federal laws.

District Attorney Steve Wolfson immediately began the process of appealing Mosley’s ruling with the Nevada Supreme Court.

Bill Gang, public information officer for the Supreme Court, said briefings are expected to be filed with the court in late July in the Sin City Co-op case.

“It could take a year for a decision to come out of the court, from start to finish,” Gang said. “We’re still relatively early in this whole process.”

Mosley’s order

Mosley, not a proponent of medical marijuana, said the statute is specific in spelling out the requirements for registration, ID cards and the exposure or lack thereof to state and federal prosecution.

But the law falls short of providing a realistic manner in which a qualified purchaser and a qualified distributor of marijuana may function, thus frustrating the clear intent of the constitutional amendment, he said.

Mosley wrote that the constitution mandates the Legislature set forth and authorize an appropriate method for supply of the plant.

“In an apparent effort to comply, the Legislature directed the State Department of Agriculture to establish a program to produce and deliver marijuana for medicinal purposes. This has not been done,” he wrote.

Prosecutions continuing

As the issue snakes its way through the Legislature and the Supreme Court, arrests and prosecutions are continuing.

“We are prosecuting cases as if [the law] is constitutional. We have one judge who says it is fine and one judge who says it isn’t. We are proceeding as if it is constitutional,” said Chief Deputy District Attorney Christopher Laurent, the prosecutor in the Sin City case. “Of course, we’re challenging Judge Mosley’s ruling.”

Laurent said people are using medical marijuana within the limits of the statute, they won’t be prosecuted. If they’re outside of the bounds of the statute, his office will file charges.

Laurent estimated there are 50 to 100 such cases pending in the system. He said he receives between two and 10 arrests to screen each week before deciding whether to file charges.

Most of the medical marijuana dispensaries in Las Vegas have been shut down, he said. They were acting as for-profit entities and required a donation to belong, he said.

Under the law, the donation constituted a “sale” and was therefore illegal, he said.

Police continue to go after people growing more than the seven-plant limit set out in the state law, he said.

Most large operations are indoors, although there have been some grow sites shut down on Mount Charleston, he said. “People are growing everywhere,” he said.

Most of those being arrested are men between the ages of 18 and 30 who don’t appear to have any debilitating diseases, he said.

“Yet they went in and got a medical marijuana card by going to some doctor who probably didn’t examine them — and paying a fee to get that,” Laurent said.

Laurent said it isn’t his office’s intent to deny medical marijuana to anyone who truly needs it.

“I think when the people of the state passed the medical marijuana referendum, they wanted to make sure we took care of those people who were suffering and needed it,” he said.

“I don’t think we as a people intended it to make marijuana the new alcohol...but I could be wrong.”

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