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Patients asking courts for way out of medical marijuana bind

A car crash left Robert Weidenfeld with chronic pain in his neck, back and shoulder.

He is wary of seeking relief from a pill — regular use of pharmaceuticals might damage his liver and kidneys.

The 44-year-old photographer and graphic designer, a medical marijuana cardholder, prefers a more natural palliative. But he has become increasingly frustrated that local and federal law enforcement agents are shutting down the dispensaries he and other medical marijuana users depend on.

"A legitimate patient has virtually no method to get it," said Weidenfeld, who knows of only one functioning marijuana dispensary left in Clark County out of about four dozen that were operating a year ago.

The crackdowns impeding Weidenfeld’s search for relief are rooted in Nevada laws that allow patients registered with the state to possess the herb, but make it illegal to obtain it. Further complicating the situation are federal authorities who maintain that state laws don’t prevent them from prosecuting those who dispense or distribute marijuana.

Patients such as Weidenfeld and others who support the medical use of marijuana are hoping the courts will step in and compel the Legislature to clarify the law and identify how patients can legally obtain the drug.

Two cases now moving through local and federal courts illustrate the medical marijuana paradox in Nevada.

A defense attorney for one of about a dozen people recently arrested for running cooperatives that distributed medical marijuana under Nevada Revised Statute 453A is asking a District Court judge to toss the criminal case because of the statutory conflicts. One Nevada law allows medical marijuana card­holders to possess, deliver or produce certain amounts of marijuana for pain relief. However, other state and federal laws make it illegal to purchase or sell marijuana.

Defense attorney Robert Draskovich is seeking to have the case against his client, Kimberly Simons, dismissed. She is charged with six felonies for illegally selling and distributing marijuana for Jolly Green Meds. Simons and five others, including the owners of Jolly Green Meds, were arrested in November during a raid by Las Vegas police.

Federal prosecutors also have gone after local dispensaries because no federal law protects the use of medical marijuana. Seven people involved with Completely Legal were arrested and charged with multiple counts of distributing, manufacturing, and possession of marijuana after local and federal authorities raided the dispensary in April.

In both cases, prosecutors say dispensary staff suggested a specific cash donation for the marijuana, which under state law qualifies as "consideration" and is illegal. The dispensaries were also growing an abundance of marijuana plants, more than the seven plants allowed under the medical marijuana law.

MEDICAL MARIJUANA MORASS

Draskovich believes the courts need to step in and rule on the validity of the medical marijuana law.

"Law enforcement is recriminalizing something the people of Nevada have said was OK," Draskovich said.

Prosecutors allege Simons twice sold marijuana to an undercover Las Vegas police officer, which violates the medical marijuana law. The officer presented Simons with a valid registration card before the transactions took place, authorities said.

At the heart of the prosecution is a passage in the 7,630-word law that states it is illegal to deliver marijuana to another person for money "regardless of whether the recipient lawfully holds a registry identification card."

Draskovich says his client wasn’t selling marijuana, but only suggesting a cash donation to the cooperative.

Prosecutor Tina Sedlock has argued that Simons stepped over the line by suggesting a specific price for a specific amount of marijuana.

"To break it down in its most simple terms… one cannot exchange ("deliver") a controlled substance ("marijuana") for money ("consideration")," Sedlock wrote in a legal brief.

Sedlock also noted that Simons and the five others charged in the Jolly Green Meds case — Sean Kinshella, Daniel Kinshella, Christine Kinshella, Jesse Moffett and Ryan Bondhus — were charged under the controlled substances act, not the medical marijuana law.

The only way a patient can now legally possess marijuana is to first commit a crime to obtain it, contended Draskovich, who criticized the law for being vague.

By not clearing the way for a patient to legally obtain marijuana, the Legislature failed to abide by the amendment to the state constitution that led to the enactment of the law, the lawyer said.

Under the 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."

And while authorities say Nevada is considered a "self-grow state," meaning individuals can use what they grow, Draskovich questioned how patients can do so when they can’t legally obtain the seeds.

The standard for vagueness in the law is whether a reasonable person of average intelligence can understand the language, Draskovich said.

In Simons’ case, the reasonable and intelligent person questioning the law is the judge.

According to court documents, District Judge Doug Smith told Draskovich at a recent hearing: "I’ve read it (the medical marijuana law) two or three times to understand it. … I don’t know how our legislators understand it."

A hearing on Draskovich’s motion to dismiss is set for Sept. 12.

NOT WHAT WAS INTENDED

The law as it exists now is not the one originally authored by former Democratic Assemblywoman Chris Giunchigliani, now a Clark County commissioner.

Giunchigliani said that before the Legislature passed the law, the proposed language was changed to reflect a similar law enacted in Oregon.

Giunchigliani said she first proposed that the state Department of Agriculture grow the marijuana for distribution by hospitals and pharmacies.

The plants would have had genetic markers so that law enforcement could track whether medical marijuana was being sold illegally by cardholders, Giunchigliani said.

"I couldn’t get any support for that, so we fell back to the Oregon model," she said.

Giunchigliani said she warned her fellow lawmakers that they were erecting a wall between patients and their medicine. "But nobody wanted to deal with it," she said.

Now legitimate patients have to turn to criminal means to get their medicine, Giunchigliani said.

"You have put these people in a very awkward position to have to violate the law to get their medicine," she said.

Giunchigliani explained the reason dispensaries opened in Las Vegas is because they are legal in other states. The dispensaries "were trying to fill a gap, but you can’t just do it without enabling language from the law."

Giunchigliani hopes the courts will direct the Legislature to come up with a legal way for patients to get their medical marijuana.

"You need to regulate it so you don’t have abuse," she said.

IN FEDERAL COURT

Throwing more confusion on the issue, federal authorities in July charged seven people for running another medical marijuana cooperative under the name Completely Legal.

That complaint filed by the U.S. attorney’s office acknowledged Nevada’s medical marijuana law, but claimed the law doesn’t preclude "federal prosecution of individuals for the possession or distribution of marijuana, in fact the state does not have that authority," according to Erik Dockery, a task force officer for the Drug Enforcement Administration.

As in the case against Jolly Green Meds, undercover officers used Nevada medical marijuana registration cards to obtain the drug in the federal case. And operating under the belief that they were in compliance with Nevada law, workers at Completely Legal offered marijuana to the undercover officers and suggested a specific "donation," according to the charging document.

Now, Jacob Lill, Edmund Schroback, Christopher Green, Kyle Lair, Richard Wheaton, Michael Savino and Ana Martinez face federal charges for conspiracy and selling, distributing and manufacturing drugs.

OUT OF OPTIONS

Meanwhile, the ongoing criminal cases are forcing patients to buy marijuana illegally or go without, Weidenfeld said.

A website called WeedMaps.com, which helps medical marijuana users find safe dispensaries, lists only two dispensaries left in Las Vegas. Only one dispensary had an active phone number.

And while some might say a patient can just grow their own, Weidenfeld argued that someone suffering from a debilitating disease, such as cancer, probably doesn’t have the physical ability to cultivate marijuana plants.

The state law does allow primary caregivers to grow marijuana for a patient, but it is still illegal for the caregiver to obtain the seeds to grow the plant.

Contact reporter Francis McCabe at fmccabe@reviewjournal.com or 702-380-1039.

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