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Are dismissals near for the Doobie Dozen?

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The wheels of justice continue to spin for the defendants known as the Doobie Dozen, but those wheels may be gaining traction.

- A LITTLE PATIENCE :  People affected by the 2010 raids on medical marijuana delivery services recently waited three hours to hear news about their cases in SLO Superior Court. Pictured left to right are Rich Donald, chairman for the SLO chapter of Americans for Safe Access; defendants Shelly Allred, Chris Austin, Amy Austin, and Peter Miller; former defendant Chip Tamagni; and attorney David Fisher. -  - PHOTO BY STEVE E. MILLER
  • PHOTO BY STEVE E. MILLER
  • A LITTLE PATIENCE : People affected by the 2010 raids on medical marijuana delivery services recently waited three hours to hear news about their cases in SLO Superior Court. Pictured left to right are Rich Donald, chairman for the SLO chapter of Americans for Safe Access; defendants Shelly Allred, Chris Austin, Amy Austin, and Peter Miller; former defendant Chip Tamagni; and attorney David Fisher.

The District Attorney’s Office is considering dropping at least some of the controversial criminal cases brought against local medicinal marijuana delivery service operators after prosecutors failed to convince the judge to draft jury instructions favorable to the office’s interpretation of state law.

Eight current and past defendants in the year-long cases waited for more than three hours in the San Luis Obispo County Superior Courthouse on Jan. 10 to hear Judge Barry LaBarbera finalize the set of jury instructions. The resulting list will guide jurors on how to interpret evidence and testimony presented at trial concerning the convoluted medical marijuana laws.

Word had been circulating that the D.A.’s Office would say it couldn’t proceed to trial if the jury instructions didn’t lean in its favor.

According to the instructions, the jury will have to consider whether the defendants possessed valid physicians’ recommendations, operated a collective, reasonably believed that the undercover officer also possessed a valid recommendation, believed that the officer expected to contribute to the collective, only accepted a reasonable amount of compensation for the marijuana, and intended to maintain records of member contributions.

Major issues of contention were whether exchanging money for marijuana constituted an “association.” LaBarbera ruled that it may. There were also questions about whether a prior relationship was required to “collectively cultivate” marijuana. LaBarbera ruled that such a relationship wasn’t required. However, he said, it will be up to a jury to decide to what extent financial records are required to operate a collective within the law.

Attorney Patrick Fisher told New Times he’s confident the instructions provide a reasonable doubt of the defendants’ guilt. But prosecutors aren’t ready to throw in the towel just yet.

“This may mean the People can’t proceed, but I think we need more time on this,” Deputy District Attorney Jesse Marino told LaBarbera.

District Attorney spokesman Jerret Gran told New Times the office is considering filing a motion to dismiss the  cases if they find it unlikely the instructions will lead to guilty verdicts. Following that potential dismissal, the office is considering taking the cases to state appellate court in order to get clarification on what is allowed under state law, he said.

Despite the favorable instructions, the defendants present for the hearing were visibly disappointed at the proceeding’s slow pace.

“I don’t think [my clients] understood just how significant [the hearing] was,” Fisher said. “They’re understandably very anxious, but these [jury instructions] are consistent with state law.”

Prosecutors are expected to make a decision whether they’ll proceed to trial on Jan. 17.

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