Ruling overturns Redondo medical marijuana decision

By Denise Nix, Staff Writer
Article Launched: 08/02/2008 02:26:12 AM PDT


A pot bust in a Redondo Beach motel room led to a precedent-setting ruling this week in the ongoing effort to decipher conflicting and controversial medicinal marijuana laws.

Three justices from the 2nd District Court of Appeals decided Wednesday that state law does not require "a patient to periodically renew a doctor's recommendation regarding medical marijuana use."

In addition, the justices ruled that it should be left to a jury to determine if the amount of marijuana a patient possesses is related to their medical needs or exceeds the law.

"It was an obvious result to me," said attorney Matthew Surlin, who represents Christopher Windus.

Windus, 39, was arrested Dec. 14, 2004, after police officers searched his room at the Palos Verdes Inn and found approximately 1.6 pounds of marijuana.

At his preliminary hearing, a detective testified that he believed Windus, who is from out of state, intended to sell the narcotic because of the large amount he had on hand.

Before his trial began, Windus tried to convince Torrance Superior Court Judge Andrew Kauffman that he should be allowed to present a defense based on California's Compassionate Use Act of 1996.

The CUA, passed as Proposition 215 by voters, legalizes the possession and cultivation of marijuana for medical purposes.

In 2003, the state Legislature clarified the law to allow qualified patients or caregivers to have no more than 8 ounces of dried marijuana with a doctor's recommendation.

Dr. William Eidleman told the judge that he consulted with Windus in 1999 and 2001, and gave him written recommendations for the medical use of marijuana for chronic back pain.

Eidleman said Windus ingested marijuana, which requires four to eight times more of the drug than smoking it. He said it would be appropriate for Windus to have 3 to 6 pounds of marijuana in his possession.

Also testifying on his behalf was an AIDS patient who said Windus was a caregiver who occasionally gave him marijuana.

After hearing from the witnesses, the judge said he found Windus was legitimately a medical marijuana patient, but that no physician had recommended he possess more than 8 ounces of the drug at any time.

He also rejected Windus' contention that he was a caregiver and, therefore, authorized to have more than 8 ounces.

Based on his findings, Kauffman barred Windus from using the Compassionate Use Act as a defense.

Kauffman predicted that, without the evidence, Windus would likely be convicted of possession of marijuana for sale.

He allowed Windus to plead no contest to the charge in exchange for 32 months in prison - but remain free on bail while the case was appealed.

This week's decision overturned Kauffman's ruling and sends the case back to the trial court level.

The opinion follows a May ruling from the same court that found the legislators' guidelines violated the state constitution, which prohibits the Legislature from amending an initiative statute like the Compassionate Use Act.

Prosecutors have asked the state Supreme Court to review the appellate justices' opinion, and to remove its status as a "published" opinion so it can't be cited in other cases.

Kris Hermes, a spokesman for Americans for Safe Access, said the Windus ruling and the earlier one are "unchartered territory" for the state's high court.

"The main theme and lessons drawn from these two cases is that these guidelines that the state has established, if they are to be legitimate at all, need to be considered 'thresholds' not 'limits,'" Hermes said.

"That's important because the legislation, at least the intent of the legislation, was never meant to cap the amount patients could cultivate or possess - the intent was to set guidelines that were helpful to law enforcement, but not set limits," he said.

The Windus decision came just one day before a ruling from an appellate court that said San Diego and San Bernardino counties must issue medical marijuana identification cards for doctor-approved patients.

The counties had refused, saying the cards are akin to government approval of drug use, which violates federal law.

While medical marijuana advocates were celebrating the ruling Thursday, federal drug enforcement agents were raiding a dispensary near Culver City - a stark illustration of how state and federal laws continually clash.

denise.nix@dailybreeze.com