Tuesday, January 13, 2009

Montana Medical Marijuana Case to go to Trial

By Pat Hansen for The Montana Standard - 01/12/2009

DEER LODGE — A medical marijuana case is scheduled for trial in Deer Lodge district court beginning Jan. 20.

David Brian Kinney, 48, of Three Forks, who allegedly is a medical marijuana user and caregiver, was arrested in August 2008. He was charged with felony possession of dangerous drugs with the intent to distribute, criminal possession of dangerous drugs, use or possession of property subject to forfeiture, and four misdemeanor charges of fraudulent representation of medical use of marijuana, and daytime speeding, a misdemeanor.

Lawyers for both sides met with Judge Ray Dayton on Thursday for a pre-trial hearing on the case.

County Attorney Lewis Smith moved to add another count — felony criminal possession of dangerous drugs — for a bottle containing hashish oil found in the car after it was impounded.

Kinney's lawyer, Christopher Miller, objected saying hashish oil is not defined in state law as a controlled substance. He argued hashish oil contains a significant amount of inert material and the liquid must be analyzed to quantify the amount of hashish. That's because the weight would determine if an offense is a misdemeanor or a felony, Miller said.

Lewis argued the definition of hashish is in the code. He said a state crime lab technician would testify the product constitutes hashish because it is a blended product and the amount is enough for a felony charge.

Judge Dayton admitted the case is "somewhat novel" and granted the defense's motion for supplemental discovery by the crime lab as to what is in the bottle.

According to court records, the charges arose after Kinney was stopped for speeding. While talking with Kinney, Montana Highway Patrol officer James Handy detected the odor of marijuana. He read Kinney his rights and then questioned him about the marijuana odor.

Court records say Kinney admitted he possessed approximately one-half pound of marijuana packaged for individual use in one-ounce increments. He produced four medical marijuana permit cards issued by the Montana Department of Public Health and Human Services, as well as a permit for his own use.

He said he was going to Missoula to sell or distribute marijuana to a person who had an out-of-state medical marijuana card.

According to the Montana Medical Marijuana Act, a person is permitted to possess one ounce of marijuana for a qualified patient or for each qualified patient for whom they are listed as a caregiver.

The court records indicate Kinney allegedly did not have a permit for the remaining marijuana, which constitutes the offense of criminal possession of dangerous drugs with intent to distribute.

Kinney was subsequently arrested; and his 1976 Chevrolet Nova and $4,911 in cash were seized and taken to the Powell County sheriff's office.

Correspondent Pat Hansen may be reached via e-mail at phansen@blackfoot.net.

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