The Orange County district attorney’s office has filed the county’s first drug case challenging the power of Proposition 215--the measure that allows people with certain illnesses to grow and use marijuana with a doctor’s approval.
David Lee Herrick, 47, was arrested outside the Santa Ana motel room where he helped run the Orange County Cannabis Co-op.
Officers approached Herrick with a felony arrest warrant from San Bernardino County--where he had allegedly violated probation on a marijuana offense that predated Proposition 215. When they entered his room, they found co-op literature and seven bags of marijuana marked with the group’s logo and stamped “Not for sale. For medicinal use only.”
The co-op was formed after the passage of the state initiative to provide marijuana to people who produce a doctor’s note, and to inform users of their rights.
Prosecutors have charged Herrick with felony possession of marijuana for sale. He is scheduled to appear in Superior Court this month, said Carl Armbrust, head of the district attorney’s narcotics unit.
Armbrust said he has been looking for a Proposition 215 test case since the measure passed in November.
Matt Ross, a spokesman for the state attorney general’s office, said several other cases are being prosecuted in Northern California, one of those against the person taking care of a patient.
In addition, the attorney general’s office is litigating a case before an appellate court that explores whether the law allows a cannabis buyers’ club, such as Orange County’s co-op, to sell marijuana. “We have taken the position that Prop. 215 does not provide for a club to sell to patients,” Ross said.
However, Dave Fratello, spokesman for the Santa Monica-based Americans for Medical Rights, which ran the campaign for Proposition 215, said he knows of more cases where prosecutors opted not to file charges after learning that the defendant had a physician’s note.
The Los Angeles city attorney’s office in March dropped a marijuana possession case against a man suffering from AIDS whose use of the drug was acknowledged by his doctor. In Orange County, prosecutors opted not to file charges in January against a sickle-cell anemia patient who had a similar note. In that case, the woman was carrying only a small amount for her personal use.
State legislation has been proposed that would make it easier for sick people to buy marijuana for medicinal purposes, so they could avoid back-alley dealers and buyers’ clubs.
Herrick carries a membership card for the Orange County Cannabis Co-op, he said in a telephone interview from the Orange County Jail, and uses the drug to alleviate pain from a herniated disc. A “physician statement” signed on a form letter provided by the Co-op says that his doctor has “no objection to her/him using cannabis/marijuana for this purpose.”
He also volunteers with the co-op, helping to confirm members’ physician notes and provide them with marijuana for whatever donation they can afford to give, he said.
Armbrust said he believes the “physician’s statement” provided by the group will not hold up in court.
“It’s not a defense to have a doctor simply say, ‘I don’t object if he uses it,’ because it’s not the doctor who’s objecting, it’s the state of California that’s objecting,” he said.
Armbrust said Herrick told officers the drug was “not for sale, but he says he accepts a $20 donation.” That, to Armbrust, constitutes possession for sale.
Designed to decriminalize marijuana use for patients suffering from AIDS-related wasting syndrome, chemotherapy-related nausea and muscle spasms, among other ailments, Proposition 215 has left some feeling more uncertain of their rights.
The measure has caused confusion as federal officials threatened to crack down on doctors recommending marijuana. While the law decriminalizes possession and cultivation of marijuana for personal use if the patient has the “recommendation or approval” of a physician, it does nothing to protect distributors of marijuana or guide users to a legitimate source of the drug.
That weakness may prove harmful to Herrick’s case, said Fratello.
“If you charge them under a section like felony possession for sale, it’s quite possible that the person wouldn’t be protected,” he said.
Herrick, who used to run a head shop in Hesperia that sold marijuana-related paraphernalia, said he did not oppose his May 18 arrest on the felony warrant, or the search of his motel room. But he said the officers should have respected his membership card from the co-op and his doctor’s note.
“They’re not honoring us as a buyers’ club,” he said from jail. “We were running our operation out of that room. I showed the officer all the literature.”
While Herrick said he recognized a “test case” of Proposition 215 was necessary, he pointed out that buyers’ clubs are the only way to get safe marijuana to sick people for a reasonable price.
“We have a law that’s been passed by 56% of the voters of this state,” he said. “No one in the government has taken any move whatsoever to move this out of the hands of the buyers’ clubs and into the hands of a medical facility, so how are these patients supposed to get their weed?”