New Charges in Medicinal Pot Case

The prosecutor in the county’s first challenge to the state’s medicinal marijuana initiative said Tuesday he plans to file new charges aimed at weakening the defense’s case.

“It will be a whole new case,” said Carl Armbrust, head of the district attorney’s narcotics unit. “We came up with new evidence [Monday], so we’re filing new charges to reflect that.”

The prosecution is hoping to show that David Lee Herrick, 47, cannot be protected by Proposition 215 because he was selling marijuana for money, as opposed to the previous charge of marijuana possession with possible intent to sell, Armbrust said.

The new law provides a defense for those who possess marijuana and have a doctor’s authorization to cultivate and possess the drug for medicinal purposes.

“It is not a defense for selling marijuana,” Armbrust said.

Defense Atty. Sharon Petrosino declined to comment on Armbrust’s legal maneuver, which promises to delay Herrick’s legal battle for months. The trial was scheduled to begin today.

Herrick, who helped run the Orange County Cannabis Co-op, was arrested earlier this year outside a Santa Ana motel room where police officers said they found 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 the drug to people with a doctor’s approval, and to inform users of their rights.

In an interview from jail after his arrest, Herrick said he volunteered at the co-op, providing marijuana to qualified members in return for any donation they could give. Herrick also said he has a physician’s statement saying that his doctor has no objection to his using marijuana to alleviate pain from a herniated disc.

Prosecutors would not comment on the new evidence other than to say that more witnesses came forward with crucial information. If convicted of selling marijuana, Herrick could face up to four years in prison, Armbrust said.

The new charges would weaken the defense’s argument that Herrick was protected by Proposition 215 when he was caught with the drug, Armbrust said.

Designed to decriminalize marijuana use for patients suffering from diseases such as AIDS and cancer, the initiative approved by voters last year has caused confusion as law enforcement officials threatened to crack down on doctors prescribing the drug. While the law is intended to protect marijuana use for patients with a doctor’s recommendation or approval, it does nothing to protect distributors of marijuana or guide users to legitimate sources of the drug.

That weakness may prove harmful to Herrick’s case, especially if prosecutors pursue the sale of marijuana charge, Armbrust said.