Defense Attorney Calls Pot Laws ‘Huge Mess’

Denson
Denson

Criminal defense attorney Eugene (Ed) Denson untangled a complex web of marijuana laws at the Long Valley Garden Club in Laytonville March 9.

The Alderpoint lawyer’s presentation was the second the Cannabis Renaissance: Navigating Our Future, created by three garden club members — Jude Nagle, Jon Spitz and Patricia Kovner.

“We want to bring this very important discussion in all its ramifications to our community,” Nagle said. “After all, cannabis is the base of our local economy. During these rapidly changing times, with the threat or promise of legalization looming, there is a lot of vital information to keep up with.”

After decades of prohibition, including propaganda, misinformation, repression, and criminalization of the “sacred healing herb,” Nagle said it is time to come full circle “to celebrate and reclaim the amazing history of our co-evolution with this remarkable plant.”

Four master cannabis growers will be featured at the April 13 garden club program at 375 Harwood Road in Laytonville, 4-6pm. Kristin Nevedal, Founding Chair of the Emerald Growers’ Association, will share the podium with Scott Ireland, Rosebud Ireland and Kevin Jodrey.

“Marijuana law is really complicated,” said Denson, who hosts a KMUD radio show on cannabis. “It’s a huge mess. The federal law is simple — marijuana is illegal; there is no known medical use, and the only exceptions are the seven or eight people who have been getting marijuana since the 1970s . . . If you use marijuana in any way, under federal law, you’ll be a criminal. There is no way out of it.”

While California’s Proposition 215 makes legal the medical use of marijuana with a physician’s prescription, the law does not limit the amount of pot a patient can use and offers few specifics on how local jurisdictions should enforce the law. The result is more than a few anomalies, contradictions and hard to predict legal situations, according to Denson.

State law, for example, permits the medical use of cannabis concentrates such as hashish and oil. A 215 grower or patient may legally possess dozens of pounds of the leaf used to make concentrates but can be prosecuted for possessing under an ounce of bud.

“If you have a 215, you are probably not going to be convicted for that,” Denson said. “A pound is not much, at least up here in the garden counties. The key is that you can have what you need. To prove what you need you can rely on the county guidelines (half a pound in Mendocino, three pounds in Humboldt) or what your doctor writes on your 215.”

Denson said in an e-mail following his talk that he’s seen prescriptions ranging from six pounds to seventy-five, depending on a patient’s medical issues and the method used to ingest the medicine.

“You can try just telling the cops you need ten pounds or whatever,” he added. “In that case, you’ll probably get arrested, but if you can make a believable and reasonable case for needing what you have, you’ll get off.”

Another gray area, he said, is selling medical marijuana.

Growers with medical prescriptions can only cultivate cannabis for medical use to sell to patients with whom they are “associated.” Patient associations, usually called collectives or co-ops, can sell to their members and can add new members at the time and place of sale. But the law doesn’t allow individual growers to do that. For an individual to sell marijuana legally the grower and patient are required to “associate” prior to cultivation. Many 215 growers, he said, join associations with dispensaries so they can sell what they grow in excess of their own personal needs to the dispensary. The dispensary can then sell to other members of the association.

Selling to non-patients is illegal, unless the non-patient is the primary caregiver of a patient and is buying on behalf of that patient. The California Supreme Court ruled that a primary caregiver is one who assumes responsibility for the health, safety or housing of the patient and does that prior to buying cannabis for the patient. The primary caregiver can grow the pot for the patient and also get reimbursed for the costs of doing so. But a relationship between two people based entirely on one supplying marijuana to the other does not make the supplier the primary caregiver.

Transporting pot is also a very tricky legal matter, Denson said. “You can have a year’s worth of marijuana at home, but that doesn’t mean you can take it to Safeway.”

The attorney’s advice on crossing state lines with marijuana was unequivocal. “Don’t,” he said. “It gets you into more federal trouble — it’s interstate commerce.”

Denson advised all growers to be “environmentally cautious.” He noted that law enforcement officials and California Fish and Game wardens are on the lookout for diesel spills and illegal water diversion and usage.

Despite increased environmental awareness, the entire justice system is operating under such a serious financial strain that it cannot effectively carry out its duties, according to Denson. Local courts are so crowded that cases are backing up. County sheriffs do not have enough deputies for adequate enforcement, and the district attorney does not have enough deputy DAs to prosecute the many cases that come in.

Denson noted that the transfer of state prisoners into the county jail system means that non-violent jail prisoners are taking up cells that are needed for more serious criminals. Creating more space means early releases and pressure on the courts and the district attorney not to send non-violent defendants to jail.

Denson praised Mendocino County DA for recognizing when he took office that the county courts had become clogged with a large number of marijuana prosecutions, many of which were so poorly investigated they could not be won. Given a jury pool that was not inclined to convict people on marijuana charges, even the best of the cases failed.

“These prosecutions were a waste of time, energy and resources,” Denson said.

“When David Eyster came in he completely changed the county's approach to marijuana cases, opting not to prosecute weak cases. Eyster made settlements in the others that involved plea-bargains for probation with little or no jail time but high financial inputs to the county in the form of paying retroactive zip-tie fees and restitution of investigation costs instead.

“The net result is very quick resolution of marijuana cases, at low cost to the county, with perhaps several million dollars gained through the fees and restitution. The DA has gone to trial on just one marijuana case in four years. He won it. His office wins eighty-five to ninety percent of all its trials. By contrast other counties have pursued plea deals less favorable to defendants, with more emphasis on jail and less on fines and reimbursements. Eyster has brought money into the county where the other counties conduct the same types of cases at a loss.”

When reached for comment, Eyster said he would “quibble slightly” with Denson’s terminology but said the defense attorney’s statements were accurate.

“His use of ‘retroactive zip tie fees’ is his way, I think, of describing my restitution program, pursuant to California Health and Safety Code section 11470.2,” Eyster said. “We don't use that phrase. The amount of restitution generated for local law enforcement was a little more than $3.5 million in my first three years. During the 2013 calendar year, the Sheriff received restitution of approximately $1.6 million. But my way of doing business isn't just about the restitution.

“It is about educating first time offenders about what is legal and what will get them in trouble again in the future. It is about the huge hidden savings in court time that is not being consumed by marijuana cases; officers not sitting around the courthouse waiting to testify on marijuana cases; our not loading up the jail with law breakers versus criminals, and other ‘hidden’ advantages. When I took office, the average marijuana case with formal charges filed hung around an average of 15 months. I have that average for marijuana cases with formal charges filed now down to 90 days. What we do it is different from anywhere else, but it seems to be working well for us. Law enforcement likes it; the defense attorneys like it; the defendants tolerate it, and the courts appreciate my expediting things without offending the interests of justice.”

As to the possible legalization of cannabis in California, defense attorney Denson would not speculate. He’s got all he can handle keeping up with laws already on the books.

“Alan Ginsberg told me in 1969 that marijuana would be legal in a year,” he mused.

Future Long Valley Garden Club Cannabis Renaissance programs: Cannabis Cultivation Panel, April 13th; Biochemist Samantha Miller on Cannabinoids, May 11; Jeffrey Hergenrather, M.D., president of the Society of Cannabis Clinicians, on medical practice, June 15; Law Enforcement Panel, July 13; Making Medicine Panel, August 10; Navigating California’s Legalization Propositions Panel, Sept. 14. All events are at the Long Valley Garden Club, 375 Harwood Road, Laytonville, 4 to 6 p.m. Donations appreciated.

(Jane Futcher is the author of a Women Gone Wild, a memoir about moving to Mendocino County.)

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