If attorney Lou Koory has his way, medical marijuana growers and users in San Luis Obispo County will be armed with the most viable defense against criminal prosecution since the passage of Proposition 215 eight years ago.
Koory currently represents Robert Marshall, who has been charged with felony cultivation for growing 70 cannabis plants in a closet of his Morro Bay home. In the first procedure of its kind in this County, Koory is asking the court to dismiss the case against Marshall on the grounds that he is the lawfully designated caregiver for two local medical marijuana patients.
â€œItâ€™s a very unique procedure [in SLO County] to put on this kind of hearing, a motion to dismiss,â€? said Koory. And if the judge rules in his favor, it would make this defense â€” which is far more expedient than a criminal trial â€” available to anyone cultivating cannabis as a caregiver in accordance with the Prop 215 guidelines. Such a procedure is already standard in Humboldt County and parts of Northern California where the passage of Prop 215 was more warmly embraced.
The medical marijuana initiative, which passed in 1996, was written â€œto ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution.â€? (California Health and Safety Code 11362.5)
On their first day in court, Friday, Feb. 4, Marshallâ€™s defense made a very strong showing, with the testimonies from a patient, Collin Van Noy, and Dr. Daniel Weaver, an expert witness. In what Koory described as â€œthe crux of the case,â€? Weaver took the stand and applied two different methodologies to estimate the amount of usable product Marshallâ€™s grow room could have produced. Koory was very pleased with Weaverâ€™s testimony, which demonstrated that the quantity of cannabis being grown was â€œnot only a reasonable amount for the patientâ€™s needs, but inadequate,â€? Koory said.
The methodologies employed by Weaver were developed at the University of Mississippi and are commonly used by the federal government in determining yield and differentiating between personal and commercial gardens.
The first method looks at the total weight of the plants and says that 28 percent of that would be usable bud. In this case, the 30 almost mature plants in evidence, including root balls and a sizable quantity of dirt, measured out to 520 grams, about 1.2 pounds. Applying this calculation, Marshall could have produced just over 5 ounces of finished product.
The second method considers the total square footage of the garden, yielding between a half-ounce per square foot on the high end and 0.38 ounces per foot on the low end. Accordingly, Marshallâ€™s 17.5-square-foot operation would have produced about 6.7â€“8.75 ounces.
In addition to those 30 healthy female plants, the Morro Bay Police Department also found 36 seedlings and 7 unhealthy males.
Van Noy is one of two patients who have designated Marshall as their caregiver. The 18-year-old Morro Bay resident described his case of stress-induced asthma and various remedies heâ€™s used to relieve that condition. But he maintains that cannabis is more effective than any of the medications prescribed by his local physician, Dr. Casden.
Van Noy has a written recommendation for marijuana from Dr. Assad in Oakland, and stated under oath that he consumes about a half-ounce a week. â€œWhen I smoke, it helps me breathe.â€? Van Noy said.
Deputy District Attorney Linda Luong raised objections to Van Noyâ€™s assessment of his own medical condition, but was overruled. She then attempted to impair the witnessâ€™s credibility by citing other incidents of alleged criminal behavior. Koory, however, was able to dissuade
the judge from allowing this line of
If the judgeâ€™s initial rulings and reactions, which are consistently in Kooryâ€™s favor, are any indication, the defense has good reason to feel optimistic about the outcome of their case. The case is scheduled resume on Feb. 18 and will include testimony from Dr. Assad and a second medical patient.
Last year, Koory prevailed in the case of Donovan No Runner, who uses marijuana under his doctorâ€™s recommendation to alleviate symptoms of bipolar disorder. The city of SLO returned 8 grams of pot to No Runner after it was confiscating by the SLOPD. But the use of a medical defense for a caregiver would be the first of its kind and could set a new precedent in SLO.
â€œItâ€™s a first-case scenario,â€? Koory said. â€œSo we just hope the judge does the right thing.â€?
Staff Writer Jeff Hornaday recommends preventive medication. Contact him at email@example.com.