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Judge OKs Las Vegas medical pot case, says laws aren’t too vague


Steve Marcus

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

Updated Tuesday, Sept. 27, 2011 | noon

In a decision destined for appeal to the Nevada Supreme Court, a state court judge on Tuesday rejected a challenge of the state's medical marijuana laws and ruled that the owners of a storefront pot dispensary in Las Vegas can face trial on felony conspiracy and marijuana sale and possession charges.

In a brief, 80-word decision posted electronically, Clark County District Court Judge Doug Smith allowed an indictment to stand against six people arrested in a police raid of a dispensary called Jolly Green Meds, and also hinted at the difficulty he had reaching a decision following oral arguments Sept. 16.

The state's medical marijuana laws aren't too vague to allow charges to stand against six people arrested in a police raid of the Jolly Green Meds dispensary last November, Smith said. But he also noted that state law fails to provide a way for patients with a doctor's prescription to legally obtain marijuana.

Attorney Michael Cristalli, representing Jolly Green Meds owner Daniel Kinshella, and attorney Robert Draskovich, representing co-defendant Kimberly Simons, immediately promised an appeal to the state high court.

"How can someone be placed on notice that they're committing a crime if the Constitution of the state authorizes what they're doing?" Cristalli asked.

He referred to a state constitutional amendment approved by voters in 2000 letting medical cardholders grow and possess small amounts of marijuana. Other state and federal laws make it illegal to buy or sell marijuana.

Smith's ruling came the same month another Clark County District Court judge reached a different conclusion in a separate but similar medical marijuana criminal case.

Judge Donald Mosley threw out charges Sept. 12 against Sin City Co-Op owners Nathan Hamilton and Leonard Schwingdorf, and declared that he couldn't make sense of Nevada's medical marijuana laws. Prosecutors obtained new indictments in that case two days later.

"One judge grants it. One judge denies it. Same facts," said Draskovich, who is also handling the Sin City Co-Op case. "It's a classic split. We're taking it to the Supreme Court."

Cristalli said he expects the seven members of the state's only appellate court will see not only shortcomings in state law but contradictions in Smith's ruling - first upholding the law, then acknowledging the need for legislative action.

Click to enlarge photo

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

Smith had told lawyers in the Jolly Green Meds case that he wanted to focus on the intent of the people running the store, and whether evidence leading to indictments handed up in May was "fair and proper." Smith declared that he wouldn't be guided by Mosley's ruling.

Charges in the multi-count indictments against Daniel Kinshella, Sean Kinshella and Christine Kinshella, Kimberly Simons, Jesse Moffett and Ryan Bondhus include felony conspiracy, sale of a controlled substance and possession of marijuana. The three Kinshellas also face felony trafficking in a controlled substance charges.

Prosecutor Tina Sedlock told Smith that state law is clear that selling marijuana is prohibited. She characterized Jolly Green Meds as "a drug trafficking organization."

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