One local veteran plans to fight the county’s murky medical marijuana laws

Wednesday, June 3, 2009 – After a four-year stint in the U.S. Navy, Eugene Davidovich started to feel anxious, restless, and suffered migraine headaches.

In 2002, at the end of the third class petty officer’s service — which garnered him 10 medals — Davidovich’s doctor prescribed him various drugs and anti-depressants.med-mj-sign-300x400

Though the drugs treated his initial symptoms, they caused him to experience worse side effects.

Finally, the hesitant patient accepted a prescription for medical marijuana.

Now, years later, after his arrest in a sting operation conducted by the San Diego Police Department, Davidovich is navigating a complicated maze of murky medical marijuana laws that have plagued the state and San Diego County for years.

“[State medical marijuana laws] are complex,” said Jim Lange, director of San Diego State University’s Drug and Alcohol program. “There certainly is vagueness to the law, probably because it is difficult to legislate medical decisions, and [state laws are] in conflict with federal law.”

Operation Endless Summer

On Nov. 13, 2008, Eugene Davidovich received a call from a man who identified himself as “Jamie Conlan.”

That’s when Davidovich’s ordeal began.

According to Davidovich, Conlan said he found Davidovich’s contact information on the Web site Cal NORML, a medical marijuana advocacy site. Conlan was looking to join a collective (also referred to as a collaborative) – a group of medical marijuana patients, who pool their resources to grow and distribute pot. After a well-publicized raid on San Diego medical marijuana dispensaries in 2006, patients had few places to safely obtain the drug.

Davidovich said he met Conlan that night, asked to see Conlan’s doctor’s recommendation, which would allow him to use medical marijuana. The police video even shows Davidovich calling Conlan to come out of the house to ensure it was the same person who joined the collective over the phone. According to court documents, Davidovich sold Conlan 6.92 grams of “high-grade” marijuana for $120.

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More than two months later, in February, Davidovich was charged with four counts of possession, transportation and sale of marijuana — netted in the SDPD’s sting, dubbed Operation Endless Summer.

The operation began when a report by the Naval Criminal Investigative Service detailed drug sales in military housing, said deputy district attorney of the narcotics division Chris Lindberg.

The three-month long operation charged 37 of the 52 suspects it netted with criminal offenses, and rounded up nearly $19,000 in cash, guns, narcotics, methamphetamine and marijuana.

Later, a story in The San Diego Union-Tribune noted the operation had few ties to the military, despite the district attorney office’s claim that military connections played a major role in the sting. One cancer survivor also implicated in the sting, told the U-T she knows no one in the military.

Conlan, an undercover agent who lied about symptoms and used a fake I.D. to obtain a doctor’s recommendation for medical marijuana, claimed in court documents the marijuana he bought was sold by Davidovich for-profit, not as a part of the collective.

Picture 12Davidovich thought he was within the scope of the law, because he asked to see Conlan’s doctor’s recommendation before he sold him the pot. Advocates for medical marijuana are claiming entrapment, since the undercover agent lied to get the recommendation, but Lindberg said, “Legally, it doesn’t qualify for entrapment. Entrapment is an inducement that will get anyone to do the crime. The police officer was buying it for the going rate. Medical marijuana recommendations are very easy to obtain. There are certain doctors in town who basically if you walk through the door will give it to you for $150.”

The deputy district attorney said it was not illegal for the agent to falsely obtain the recommendation.

Activists have also decried the sting, saying it targeted patients.

“The scarce resources we have in this city would be much better spent on working with medical cannabis patients to establish a sanctioned source of medication rather than investigate, prosecute, and damage people’s lives,” Davidovich said.

Lindberg said patients were not targeted, and noted district attorney Bonnie Dumanis’ vocal support for safe access to medical marijuana for qualified patients. Lindberg said the people netted in Operation Endless Summer broke the law – plain and simple. Medical marijuana patients or their caregivers may jointly grow and cultivate cannabis – as they do in collectives – but all members must be involved throughout the process; the sale of marijuana after the fact is illegal, Lindberg said.

“They weren’t being prosecuted because they are medical marijuana patients – people are being prosecuted for engaging in illegal drug sales,” he said. “There is no provision in medical marijuana law to sell drugs for profit or otherwise. These people were selling drugs to an undercover officer who, basically, the sole contact they had with them was calling them up on the phone; the people would come over to his house, and exchange marijuana for cash.”
The terms collective, cooperative, and dispensary are thrown around and seen as interchangeable by the public at large and much of the medical marijuana community. They all provide a means for patients to safely acquire marijuana.

The attorney general’s 2008 medical marijuana guidelines define the differences.

Statutory cooperative: “Must file articles of incorporation with the state and conduct its business for the mutual benefit of its members… and act as nonprofit corporate entities.”

Collective: “Should be an organization [not an incorporated business] that merely facilitates the collaborative efforts of patient and caregiver members including the allocation of costs and revenues.”

Dispensary: A storefront business that sells marijuana to qualified patients. These are not considered legal under the attorney general guidelines or by the District Attorney.

Davidovich, however, says he did not sell the drug for profit.

“There was absolutely no profit built into the reimbursement,” said Davidovich, who says the cost of rent for the collective’s facility, the electricity bill and equipments, and the cost of nutrients, soil, water, packaging and delivery, not to mention his time, outweigh the dollar amount sales bring in. “In fact often it was way below cost and I had to subsidize the loss from my paycheck at my regular job to pay for rent of the facility, or the electric bill, as the reimbursement collected from the members was not enough to cover the costs. I did not see or collect any profit from any delivery to any of the collective members.”

Davidovich would not say what the collective’s monthly costs amount to, or the monthly dollar amount in reimbursement from sales. It will be detailed in a preliminary hearing on Monday, he said.

What if Davidovich’s claim is true; that he didn’t sell marijuana for profit? Lindberg said, in no uncertain terms, that’s unlikely: “Of course they are selling for profit. Why else are they engaging in the activity any way?”

‘I am not a dangerous drug dealer’

Davidovich’s troubles didn’t end with Operation Endless Summer. Shortly after he was arrested, the El Cajon resident – who said medical marijuana allowed him to resume a normal life, and pursue his master’s degree in business administration – separated from his wife and son, and left his job as a software specialist so he could focus on winning his case.

Davidovich believes he was singled out for being a veteran, and that the arrest has cast a light on his struggle with anxiety, and tarnished his image among other members of the military.

He blames the county’s obscure medical marijuana laws for his legal woes – and his attorney, Michael McCabe, plans to argue Davidovich’s case.

McCabe, a medical marijuana activist best known for his victory in People v. Konow, said local authorities chose to “create” a crime. In the case that made him well known, the attorney defended Carolyn Konow, who was prosecuted for operating a dispensary, California Alternative Medicinal Center, which had been operating for two years.

The case against Konow, which was taken to the state Supreme Court, was dismissed by Judge William Mudd, because Proposition 215 – the state’s Compassionate Use Act of 1996 – was not clear, leaving patients vulnerable. Mudd also said Konow’s clinic followed all guidelines for a dispensary. McCabe sees parallels between Konow and Davidovich’s cases – but, he said, authorities went one step further in Davidovich’s case.

“What [authorities] did wrong in this particular case was singling out individuals who were medical marijuana advocates and targeting them for prosecution originally under the guise of an operation to clean up drug dealing to servicemen, which it wasn’t at all,” McCabe said. “They didn’t simply investigate; they created a crime where none really existed by going to the lengths of supplying false identification to the undercover agent and having him go to a medical marijuana physician, a physician who was known for his cooperation and his participation in the medical marijuana [community].”

Davidovich said he’s looking forward to his day in court – if not for his own benefit, for the safety of other medical marijuana patients.

“I am not a dangerous drug dealer, I did not possess any illegal drugs and I was operating the collective under what I truly believed was the guidance of California state law,” Davidovich said.

” … The reason I am speaking out is to make as many patients aware of the current state of fear in the city as possible, so that this does not happen to any other collective or coop that is abiding by state law, and so that this bias-driven selective prosecution can end.

“I love this country, respect our system of laws. I was not trying to do anything illegal here or profit from it, in any way.”

‘It’s not like San Diego County is starting from scratch’

There’s no indicator that Davidovich’s case will be the last. Not until the state’s laws and county’s enforcement on medical marijuana use become more clear, and until patients are educated about the do’s and don’ts.

Aged propositions – created and passed by voters – are vague, primarily because they set the spirit of the law, and the legislature is required to fill in specific guidelines.

In 2003, the state Senate approved SB 420, a bill which clarified parameters of medical marijuana use in the state. The bill requires counties to create local programs to issue medical identification cards and set safeguards for patients.

But, different local laws trump state law, and have led to a number of court cases with varied results. In 2008, the attorney general set boundaries for law enforcement, outlining when a patient should be arrested or have his or her marijuana confiscated.
San Diego: Medical marijuana crop. (Photo courtesy of Scott Beale / Laughing Squid of laughingsquid.com)

Procuring the drug is tricky. The U.S. attorney general’s guidelines allow collectives to cultivate marijuana for medical purposes, and allows for marijuana transactions among collective members – as long as no individual profits from the transaction. But, in the guidelines, the attorney general notes, “the earnings and savings of the business must be used for the general welfare of its members or equitably distributed to members in the form of cash, property, credits, or services.”

Deputy district attorney Lindberg said laws do not allow the sale of marijuana – period. Questions remain: When are patients considered “members” of a collective? Once a collective is established, are patients still able to join? What is the difference between buying marijuana once it’s grown and paying into a collective before it’s grown? Those questions remain unanswered by state law, advocates said, and it’s affecting patients who seek safe access to the drug.

Despite the fact state law is difficult to navigate, state assemblymember Lori Saldaña said it’s the local government’s responsibility to work with constituents. The county should look to others counties, which have clear medical marijuana laws, to help establish guidelines.

” … It’s not like [San Diego County is] starting from scratch,” Saldaña said. “It’s the only county that hasn’t developed any regulations. The concerns I’ve heard expressed, informally, are around properly regulating drugs.”

Saldaña also said state legislators will not interfere with the county’s guidelines, and she hopes local officials will implement them as soon as possible.

“[Legal costs and the] cost of delaying is substantial,” Saldaña said. “It’s up to the county to comply with the state law – state legislators will not interfere. But, they need to look at delivery for the chronically incapacitated and ask, ‘How do they get access to medical marijuana?’”

McCabe agrees with Saldaña, and said if patients can’t safely grow and purchase medical marijuana, they will have to seek alternative outlets – namely, the black market, which, the attorney said, increases the risk of violence and prosecution. Until the government steps in advocates need to do a better job of educating the public McCabe said.

“The movement has to attract the public support and to educate the public just what it’s about. The current system fosters crime by making qualified patients and caregivers go to illicit sources rather than promoting law-abidingness,” McCabe said.

Moving forward at a local level

San Diego County, along with San Bernardino County, has fought state law regarding medical marijuana. San Diego patients still don’t have medical ID cards, due to a lawsuit launched by the County Board of Supervisors in 2006.

The board claimed federal law, which prohibits the use of marijuana, supersedes state law. Determined to take the case to federal court, the county spent $5,000 on the case, which was rejected by the Supreme Court for a hearing on May 18. That was the most recent defeat; the San Diego Superior Court rejected the case in 2006, and the state Supreme Court declined to review it in October 2008.

Board chair Dianne Jacob said in a January statement, despite the appearance that the board is anti-medical marijuana, the board’s attempt simply aimed to reconcile state and federal law. The board voted 4-1 in closed session to pursue the case at the federal level.

“It doesn’t matter what side of the debate you’re on – and I’ve heard compelling arguments from both sides – the prudent step is to resolve the existing conflict between state and federal law,”
San Diego: med-mj-sample

Jacobs said in January. “The feds view medical marijuana as illegal. Agents from the Drug Enforcement Administration have raided homes and dispensaries in the last year. Were we to proceed with implementing the state’s plan, we would be facilitating the arrest of our own residents. We need to end the confusion with a definitive ruling that protects all parties.”

Some confusion was laid to rest when attorney general Eric Holder announced the federal government will allow state laws to take precedence in terms of medical marijuana laws. McCabe is hopeful that the federal government’s statements will change the local climate.

“The Obama Administration can’t limit the law under the books but can direct the state attorneys what conduct they are to prosecute and what conduct they are not to prosecute,” McCabe said.

Also at a local level, two city councilmembers – Donna Frye and Todd Gloria – are hoping to help clarify laws.

Mark Sauer of Frye’s office and Travis Knowles of Gloria’s office are collaborating to clarify San Diego’s guidelines for distributing medical marijuana to qualified patients. The councilmembers hope to re-establish a task force to help cooperatives and collectives understand Proposition 215’s guidelines.

“[Frye] and I have heard from several constituents who have run afoul of the law for possessing/distributing marijuana even though they had legitimate doctor’s letters and appeared to be acting in good faith,” Sauer said. “We believe patients, and those running cooperatives allowed to distribute medical marijuana under Proposition 215 and the state attorney general’s August 2008 guidelines should be able to know what is legally required of them.”

What’s next?

The county board of supervisors will discuss how to issue medical ID cards on June 16, and implement the program July 1.

As for Davidovich, he hopes his case closes during the preliminary hearing on Monday. Some say, though, Davidovich’s attorney McCabe may find himself taking this case to the Supreme Court. But, McCabe is “cautiously optimistic” about the defendant’s chance at winning at the local level.

“I’m hopeful the climate will change and the will of people will be respected,” McCabe said. “That is, after all, what our government is supposed to be all about.”

Editor’s note: Chair of the County Board of Supervisors Dianne Jacob opted to re-release a statement rather than participate in an interview. An interview request was also made for San Diego Police Chief William Lansdowne; however, his office thought the interview with deputy district attorney Chris Lindberg would be sufficient. Peter Hughes of the Naval Criminal Investigative Service and the Medical Marijuana Evaluation Center have not yet responded to requests for interviews.

Read more: http://www.sdnn.com/sandiego/2009-06-03/news/politics-city-county-government/operation-endless-summer-nets-medical-marijuana-patients#ixzz0HQSSPjgE&B

By Steven Bartholow and Hoa Quach. Source.

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