Medical marijuana sale sends man to Supreme Court

CARSON CITY — Nevada has a new medical marijuana law on the books that next year will allow patients to legally buy the drug from a dispensary, but there are a number of people in Clark County who face the potential of life sentences for distributing cannabis under the old law.

This was the issue before the Nevada Supreme Court on Monday when it heard an appeal involving Leonard Schwingdorf and Nathan Hamilton, who operated a city-licensed medical marijuana cooperative in Las Vegas on West Charleston Boulevard. In 2011, an undercover police officer with a medical marijuana card joined the Sin City Co-Op and made a donation of $110 for an eighth of an ounce of the drug.

The Clark County District Attorney’s office then got a grand jury indictment charging the two men with multiple felony counts of the illegal sale of marijuana and trafficking, arguing that the donation was in fact a payment for the drug.

The case never made it to trial, however, when former Clark County District Judge Donald Mosley ruled that the law created by the Legislature to allow medical marijuana patients to obtain the drug was vague and unconstitutional because it did not provide them with a way to get the medicine.

The Supreme Court, which will rule later on the case, is considering an appeal of Mosley’s ruling by the district attorney’s office.

The legal quandary is why Sen. Tick Segerblom, D-Las Vegas, introduced his dispensary law in the 2013 session. It was signed into law by Gov. Brian Sandoval and is expected to take effect next year.

During the oral argument, Chief Deputy District Attorney Christopher Laurent said the case should be allowed to proceed to trial on the question of whether the requested donation was in fact a thinly veiled sale of the drug which is illegal under the law.

But attorneys Joseph Low and Gary Modafferi, representing the two men, argued that Mosley’s ruling should be upheld. Invalidating the state statute, crafted by state lawmakers in 2001 after voters approved a constitutional amendment establishing a medical marijuana program, would likely mean no prosecutions of Schwingdorf, Hamilton, or others who face similar charges stemming from police actions on the co-ops, Modafferi said after the hearing.

Several justices questioned whether the law crafted by the 2001 Legislature, which allowed patients to grow their own or get the drug donated by a caregiver who grew the plants, properly carried out the intent of the constitutional amendment to set up a system whereby patients could access the drug.

Justice James Hardesty said the case should have gone to trial so the jury could determine whether the marijuana was technically being offered for sale. Then the court could have addressed the issues over the constitutionality of the medical marijuana law, he said.

But after the hearing, Modafferi said that would not be a good option for his clients given the stress of a trial and the potential for lengthy prison sentences. The stress of the situation was responsible for Hamilton’s suicide last year, he said.

Schwingdorf “is sweating it out,” he said.

“People don’t realize what a traumatic experience going to trial when you’re facing a life sentence is,” Modafferi said. “That’s a tough way to go.”

Contact Capital Bureau reporter Sean Whaley at swhaley@reviewjournal.com or 775-687-3900. Follow him on Twitter @seanw801