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August 18, 2019

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Attorney: Marijuana dispensary case should go to Supreme Court

Attorney says Metro ‘re-criminalizing’ possession and distribution of medicinal marijuana

Drug arrests

Top, from left: Sean Kinshella, Daniel Kinshella and Christine Kinshella. Bottom, from left: Kimberly Simons, Jesse Moffett and Ryan Bondhus.

Jolly Green Meds

If one of the attorneys in the state’s first criminal case involving Nevada’s medical marijuana laws gets his way, the matter eventually will come before the state’s highest court.

“My goal is to get before the Supreme Court as soon as possible,” Robert Draskovich said today. “This is an extraordinary case ... We’re basically operating in a vacuum. There’s not a lot of guidance. “

Draskovich, attorney for Kimberly Simons, 26, one of six defendants in the case, made that comment outside a Las Vegas courtroom today following the denial of a motion he made in the case, which involves Jolly Green Meds, 7710 W. Sahara Ave.

The business operated for about three months until Metro Police shut it down in a raid on Nov. 23, 2010. Its president, Sean Kinshella, 29, one of the defendants, said it was set up as an association and served about 500 clients. Kinshella says they operated the business in accordance with NRS 453A, a state law drafted with the intention of fulfilling a change in the constitution approved by voters that provides an appropriate means of supply of marijuana to qualified medical patients.

“In a city and a state where we’re dealing with scarce resources, we’re allocating scarce resources to re-criminalize something that our Legislature has already regulated and made non-criminal,” Draskovich said outside the courtroom. “I mean, you’d think they’d focus on important stuff.”

In the raid, police found about 5 pounds of marijuana and more than 22 plants at the business, which police say allegedly sold food products laced with THC, the active ingredient in marijuana. Those products included butter and peanut butter, police said. Officers said Jolly Green Meds also offered their customers a delivery service.

Police also said they found nearly a pound of hash oil, a potent Cannabis that's sometimes as high as 80 percent pure THC. The 351 grams recovered at the store are worth about $21,000, police said.

The six were indicted by a grand jury on May 20 on 16 felony counts that included sale of marijuana, conspiracy to sell marijuana, possession of a controlled substance with intent to sell and maintaining a place for sale of a controlled substance. The defendants, who also include Daniel Kinshella, 50; Christine Kinshella, 24; Jesse Moffett, 33, and Ryan Bondhus, 27, have all entered not guilty pleas. A tentative date for their jury trial was set for 10:30 a.m. March 26, 2012.

In his seven-page motion today, Draskovich asked the court to compel the district attorney’s office to produce the valid registration card used by the Metro detective to obtain marijuana from Simons — and documentation on how he obtained that card, which is supposed to go to only those whose physicians have said they need marijuana to mitigate the symptoms or effects of a chronic, debilitating condition.

Draskovich wrote Metro is “luring citizens, like Ms. Simons, into providing medicinal marijuana using registration cards that only the undercover officers know are fake. And the State refuses to produce this evidence to the Defense.”

“...whether Ms. Simons committed a crime turns solely on whether she knew the card Detective Splinter presented was not valid. In other words, if (1) the card was valid; or (2) Ms. Simons believed the card was valid, she is statutorily exempt from prosecution."

He also wrote that evidence about the detective’s registration card and whether it was fake or not was not provided to the grand jury.

“They have a real card that they obtained falsely. You have to submit a declaration or oath that you suffer from a list of diseases,” Draskovich said outside the courtroom. “We have Metro who is operating under the schemework of 453A, doing so falsely, and they’re not called on it.”

In his motion, he wanted the district attorney’s office to turn over the paperwork used by a Metro detective, to see if he had gone to a physician and obtained a certificate as well as a declaration under oath that he was in need of medicinal marijuana.

He said that within 21 days, he plans to file a writ of habeus corpus to continue to try to get that information “because the district attorney willfully withheld exculpatory evidence to the grand jury.”

Before denying the motion today, Clark County District Judge Douglas Smith said his interpretation of the law is that it was set up for primary caregivers to be the ones who would distribute medical marijuana, “not little 7-Eleven marijuana shops.”

Smith said he thought the Legislature’s intent was to allow primary medical caregivers to disperse medical marijuana to people with legitimate registration cards.

“A person with a medical card cannot go out and sell (marijuana) to another guy,” Smith said. He also said he didn’t see in the law where a co-op could be established to sell medical marijuana.

In terms of the Metro detective's registration card, “I know there is case law that in investigations, Metro is not required to be straightforward always, where we can get some of our crimes solved,” Smith said.

“So they’re basically above the law, basically. Is that what your honor is saying?” Draskovich said.

“No, no, no, no. They can try to solve our problems in this society,” Smith said.

Smith took issue of Draskovich saying police were “luring” the business operators into an entrapment situation.

“It was more this business was luring people in that may or may not have had their cards,” Smith said. “I mean you couldn’t even get in the stores without being buzzed in, so to speak. I hate to choose that word.”

Smith said in the next court document that attorneys file, he would like to see the business license obtained by the business. The judge also indicated the law was vague.

“I’ve had to read it two or three times to understand it,” Smith said. “I don’t know how our legislators understand it.”

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