The Nevada Supreme Court said Friday that a Las Vegas man must stand trial on charges of illegally operating a medical marijuana dispensary three years ago, though it is now legal.
The ruling, handed down by the full court, overturned District Court Judge Donald Mosley’s March 2012 decision to dismiss the case against Leonard Schwingdorf, who faced multiple felony counts in connection with the trafficking and selling of marijuana at a city-licensed medical marijuana cooperative on West Charleston Boulevard.
Schwingdorf and another man, Nathan Hamilton, were arrested in 2011, when 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 weed. Clark County prosecutors said the donation was really a payment for the drug.
Mosley, who dismissed the case before his retirement, called the state’s medical marijuana law vague and unconstitutional because it allowed no legal way for a medical marijuana card holder to obtain pot.
But the justices said in a five-page decision that they did not want to address the constitutionality of the law unless absolutely necessary and ruled “before the constitutionality issue may be reached here, a jury must first address the factual issue of whether the exchange of medical marijuana” for a financial donation was illegal.
The justices added that they would reconsider the constitutionality argument in a post-conviction appeal.
They might never have to.
The Legislature last year enacted a new medical marijuana law that allows patients to buy the drug legally from a dispensary, such as the one Schwingdorf and Hamilton operated.
And the district attorney’s office recently dropped the case against another man charged with illegally operating his own medical marijuana grow house.
Assistant District Attorney Christopher Lalli declined to comment on Schwingdorf’s case late Friday but said “the decision from the Supreme Court is a recognition that the law has changed and attitudes regarding medical marijuana have changed.”
Schwingdorf’s lawyers Joseph Low and Julie Raye said they hope the district attorney will dismiss the case because of the changes to the medical marijuana law.
But they are prepared to take the case to a jury, Low said. If convicted, Schwingdorf could face life in prison.
Prosecutors had argued in their appeal of Mosley’s ruling that a jury should decide whether the requested donation for medical marijuana was really a thinly veiled sale of the drug.
The defendants had suggested a specific cash donation for the marijuana, which under state law qualified it as “consideration” and was illegal, prosecutors said. Also, the dispensary was growing an abundance of marijuana plants, more than the seven plants allowed under the medical marijuana law.
The Supreme Court noted in its decision Friday that the undercover police officer “never attempted to offer an amount other than the suggested donation.”
Under the constitutional amendment, ratified by Nevada voters in 2000, “the Legislature shall provide by law for … appropriate methods for supply of the plant to patients authorized to use it.”
But in 2011, one Nevada law allowed medical marijuana cardholders to possess, deliver or produce minute amounts of marijuana for pain relief. But other state laws made it illegal to buy or sell marijuana, leaving no realistic way for patients to obtain the herb.
The law allowed someone registered to possess 1 ounce, three mature plants and four immature plants at one time, meaning a person arguably could hold only one dose at a time.
The Legislature sought to correct the problem last year by regulating the distribution of medical marijuana to patients. A new law allows up to 40 marijuana dispensaries in Clark County.
The state Health Division was supposed to start accepting applications for dispensaries by April 1, but officials recently said the program probably won’t be ready until the summer.
Meanwhile, the high court dismissed the case against Schwingdorf’s co-defendant, Hamilton, who owned the co-op, after his suicide in 2012. His lawyer, Gary Modafferi, told the Las Vegas Review-Journal that the stress of the situation was responsible for Hamilton’s death.
Contact reporter Francis McCabe at fmccabe@review journal.com or 702-380-1039.