Marijuana Case Will Not Test State Law

A judge ruled Thursday that a member of a Garden Grove-based cannabis club cannot claim he provided marijuana to a terminally ill man out of “medical necessity” to save or prolong his life.

The ruling in Orange County Superior Court by Judge William Froeberg means the case of People vs. David Lee Herrick will no longer be the first local test of the medicinal marijuana initiative passed by California voters in 1996.

A jury now will only be asked to decide whether Herrick’s acceptance of cash “donations” in exchange for marijuana for medicinal use amounts to the illegal distribution of the drug.

“The key issue for a test case is now dead unless Mr. Herrick is convicted and there is an appeal,” said Deputy Public Defender Sharon Petrosino, Herrick’s attorney. “It was a big part of this case.”

Froeberg already has ruled that the initiative, known as Proposition 215, did not legalize sales, transportation or possession for sales.

So Petrosino wanted to invoke a “medical necessity” defense: under certain conditions, society allows a person to break a law because the alternative is so onerous. The defense attorney said she believed she had legally proven the point and that it should have been placed before the jury to decide.

“We were saying we should be able to provide a medical necessity case,” Petrosino said. “We’re very disappointed. I think [the judge] was just plain wrong on the medical necessity. I think he held us to too high a standard.”

But the judge said that Herrick’s activity “is not a necessity. It’s something Mr. Herrick has done for his own purposes. There are reasonable alternatives. He does not need to set up a community enterprise to provide it.”

Deputy Dist. Atty. Carl Armbrust argued there are numerous legal drugs to ease the suffering of terminally ill patients.

In addition to Herrick, 48, club director Marvin Chavez is in jail awaiting trial on marijuana charges, and club member Jack Schachter is out on bail.

Froeberg made the ruling before the start of jury selection in the case, which will resume Monday.