AS THE SICK SEEK POT ALTERNATIVES, QUESTIONS SWIRL
POLICE, GOVERNMENTS AND COURTS STRUGGLE TO ENFORCE CLASHING LAWS

Published October 8, 2006 by Adam Ashton, Bee Staff Writer

Kathy Belluomini is on pain pills again, the same medicine she swallowed for more than a decade even though it made her so sick she couldn't get up some days.

She went back to Vicodin after federal agents shut down the California Healthcare Collective, a medical marijuana clinic on McHenry Avenue in Modesto. Belluomini bought cannabis there for the past seven months.

The Waterford woman voted to legalize medical marijuana for seriously ill people in 1996. Ten years later, she's dismayed California still doesn't have a consistent way to deliver cannabis.

"The state passed it and the state's not backing it. They're not protecting their citizens," said Belluomini, 49, who suffers from arthritis and liver problems.

She isn't the only one struggling to make sense of the conflict between state laws allowing medicinal marijuana and federal laws prohibiting it. Police, local governments and courts each have a role in balancing the laws.

* Police must adjust to changing criteria about whom they can arrest on drug charges. Generally, Northern San Joaquin Valley law enforcement agencies refrain from arresting medical marijuana users if they show doctors' recommendations for the drug, have small amounts of it and don't sell it to others.

Stanislaus County District Attorney Birgit Fladager said her office has verified doctors' recommendations and sometimes has prosecuted people who produced medical marijuana cards after arrests.

* Cities and counties must figure out how the drug should be distributed, particularly whether to allow nonprofit dispensaries similar to the one police shut down in Modesto.

Stanislaus County's two dispensaries closed last week after Drug Enforcement Administration busts. Most cities in the county have temporary moratoriums preventing similar businesses from opening.

Merced County is suing the state over a law that requires counties to issue medical marijuana cards. Stanislaus County is expected to begin distributing the cards later this year.

"As an elected official, I swore I would uphold the law. I have a problem trying to determine which law I should uphold," said Merced County Supervisor Jerry O'Banion.

* Courts must decide whether to admit evidence of medical marijuana use in cases involving suspected drug suppliers who carry doctors' recommendations for cannabis.

State courts admit such evidence, but federal courts do not have to acknowledge it. The U.S. government does not recognize California's exception for medical cannabis.

Dustin Costa of Winton, arrested in 2004 on suspicion of drug trafficking, wants a federal judge to admit evidence showing he was growing plants for a medical marijuana cooperative, according to court documents. His trial is expected to begin Nov. 7.

Robert Forkner, a Modesto lawyer representing the Healthcare Collective directors arrested Sept. 27, is preparing a similar argument.

"The city of Modesto gave them a business permit," Fork- ner said. "The county of Stanislaus approved their zoning and the state of California allowed them to provide medical ser- vices as approved by the voters, and they relied on that."

COMPROMISE NOT LIKELY

The magic bullet to resolve the conflict could come in the federal government's permitting medicinal uses of marijuana. Or the state could abandon Proposition 215, the initiative that allows sick people to use the drug.

Some want a compromise that would keep the DEA from shutting down California clinics, though neither side appears to be budging.

"We know for a fact that it keeps people alive and improves the quality of life for tens of thousands of Californians. To have our federal government come in here and disrupt the will of the people is very disconcerting," said Assemblyman Mark Leno, D-San Francisco.

Medical marijuana supporters point to a 1999 study from the Institute of Medicine, a branch of the National Academy of Sciences. It found that cannabis can ease the symptoms of some illnesses, particularly nausea.

The Food and Drug Administration issued a statement in April indicating that marijuana has no medical value but a high potential for abuse.

A year ago, the Supreme Court ruled that federal drug agents can arrest medical marijuana users for narcotics offenses in any of the 11 states that have legalized cannabis for sick people.

"The federal government isn't confused," said Assemblyman Dave Cogdill, R-Modesto. "They have their laws and they're prosecuting them. The controversy comes in with how the people of the state of California have chosen to proceed."

Cogdill said the Legislature might have to take another crack at reforming its medical marijuana guidelines. He criticized dispensaries as ripe for abuse, particularly when they rely on questionable doctors' notes and lack a system to prevent resales of the drug.

ABUSE OF MEDICAL USE

Undercover Modesto police bought marijuana at the Healthcare Collective with doctors' recommendations they forged. They found cannabis from the collective in the hands of people who didn't have doctors' recommendations, police said.

"What people thought they were voting is not at all what they voted for," Fladager said. "What happened over here on McHenry, that to me is more indicative of what medical marijuana appears to be. It's people getting medical marijuana who don't need it."

An Oakdale man this summer found a doctor's recommendation for medical marijuana in the car of his healthy 18-year-old son. The father found receipts from the McHenry clinic, too.

The man, who spoke with The Bee on the condition of anonym- ity to protect his son's identity, said his son got the paperwork at an Oakland pot cooperative.

"I don't think anybody, when they passed the law, thought that kids would go up there and get a card for it," the father said.

NO HELP FROM CONGRESS

Liberal members of Congress have failed to pass laws forcing the federal government to soften its stance against medical marijuana. That leaves Californians scratching their heads about how to make medical marijuana work.

In Modesto, the balance is allowing people with doctors' recommendations to grow marijuana plants for themselves, but not to sell it, City Council members indicated last week when they advanced a measure to block new dispensaries from opening.

Belluomini said that arrangement shuts her out. She doesn't know where she'd buy plants, or if she could keep them alive.

She said the clinic should not have been closed in the first place.

"It's an injustice for these people that really can't go anyplace else," she said.

------------- LEADERS' VIEWS

'My personal belief is we're going the wrong direction in this state'

-- State Sen. Jeff Denham, R-Merced, who opposes state laws allowing medical marijuana use because he says they create too many conflicts for police

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'The IRS never sent back their tax money. They implicitly were entrapped by the USA.'

-- Attorney Robert Forkner, who is defending two Modesto medical marijuana suppliers in federal court against charges of drug trafficking

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'We will not turn a blind eye to flagrant violations of federal law'

-- Assistant U.S. Attorney Larry Brown

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'The law's a horrible law, and I think it needs to be crafted so there's a responsible way of delivering medical marijuana, like any other pharmaceutical drug'

-- Merced County Undersheriff Bill Blake

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'No one is suggesting that it should be everywhere in the community, but we have to recognize that people who are seriously sick and seriously injured have special needs'

-- Americans for Safe Access spokesman William Dolphin

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'We take a very strong stand on this, and we believe that no drug use can turn out to be a benefit or a positive thing for our community'

-- Modesto police spokesman Sgt. Craig Gundlach

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'We're directly in the middle of the conflict between state and federal law. It's causing problems for the sheriff, the district attorney and the health director.'

-- Merced County Supervisor Mike Nelson

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'Cities and counties try to be bold and go ahead with prosecutions, but in the end they find state law is not on their side'

-- Compassionate Coalition spokesman Nathan Sands