Case Dismissed; Men Want Their Medical Marijuana Back

Photo: KOMO News

All charges against Guy Casey, above, were dismissed — but the cops still don’t want to give his medical marijuana back.

​Two operators of a Tacoma, Washington medical marijuana dispensary beat drug charges earlier this year. Now they want their cannabis back.

Guy Casey and Michael Schaef said they are legally authorized to possess the marijuana seized during a raid and that the government no longer has any interest in the pot, reports Adam Lynn at the Bellingham Herald.

They’ve asked a Pierce County Superior Court judge to return to each of them 48 ounces of harvested marijuana and 30 plants — or their equivalents in cash.

Their attorneys contend that each plant — almost certainly dead now — was worth $3,000 to $3,500.

Graphic: North End Club 420

​ “Here, it is clear that Mr. Casey is entitled to a return of the property at issue,” his attorney, Aaron Pelley of Seattle, wrote in a pleading filed in Superior Court. “The case has been resolved, and the property is no longer needed as evidence.”

Deputy Prosecutor John Sheeran refused. Schaef and Casey are in violation of Washington’s Medical Use of Marijuana Act, Sheeran claimed in a counter pleading.

Sheeran claimed the men have not proved they’re legitimate medical marijuana patients or providers, and they possessed five times more marijuana than allowed by law when they were arrested.

“A person who takes one step outside the rules set up by the Legislature loses the protections offered by the Act,” the deputy prosecutor claimed.

The two sides are scheduled to argue their case in court on August 9.

The outcome of the case could establish precedent in Washington state, where courts have yet to rule whether forfeiture laws apply to medical marijuana, Casey’s and Schaef’s attorneys wrote in their pleadings.

The two men — good friends as well as business partners — were arrested in May 2010 after agents with the West Sound Narcotics Enforcement Team (WestNET) raided the North End Club 420 cooperative on Oregon Avenue and Casey’s home near Olalla, Washington.

Prosecutors charged Casey with two counts of unlawful delivery of a controlled substance and one count each of unlawful possession of a controlled substance and unlawful manufacture of a controlled substance.

Schaef was charged with three counts of unlawful delivery of a controlled substance and one count each of unlawful possession of a controlled substance with intent to deliver and unlawful manufacture of a controlled substance.

Prosecutors claimed in court records that the men sold marijuana to people not authorized to have it, kept a larger supply on hand than the law allows, and charged exorbitant prices to enrich themselves.

Much of the case was based on the testimony of one confidential informant, who claimed to have witnessed such behavior.

Detectives seized 85 marijuana plants and about 11 pounds of harvested cannabis during the raid, according to Sheeran.

In February, prosecutors dismissed the case against Schaef and Casey, saying questions about the informant’s truthfulness made the prosecution “untenable.”

“The informant was the basis for this investigation and is an essential witness for the state,” Deputy Prosecutor Jennifer Sievers wrote in paperwork dismissing the charges.

The following month, Casey made a motion for the return of his marijuana and other property seized during the raids. Schaef followed suit in May.

Both men said they first asked the Kitsap County Sheriff’s Department, which is holding the property seized during the raids, to return their property, but were rebuffed.

The men said they and their families were treated badly by task force detectives and suffered emotional and monetary harm as a result of the investigation.

“Mr. Casey and his family, including his children, were held at gunpoint by the drug task force,” Pelley wrote in his pleading. “They were humiliated in front of neighbors, and the Sheriff’s Department issued press releases on the arrest.”

Schaef, a single parent, lost his ho0me as a result of his arrest and the financial burden the case put on him, and had to send his 17-year-old daughter to live with relatives, his attorney, Kent Underwood of Tacoma, wrote in court papers.

“His business reputation was injured by statements that he was not helping sick people but, rather, taking advantage of them,” Underwood wrote.

Sheeran, ignoring the fact that the case against the two men was dropped, claimed they were both “drug dealers” in his recent pleading, which begins, “During the months of March, April and May 2010, Guy L. Casey and Michael J. Schaef repeatedly delivered marijuana in violation of” state law.

The deputy prosecutor repeated the allegations made in the criminal case which had already been abandoned and pointed out that Casey drives a Hummer and has several active bank accounts despite reporting little to no earnings to the government.

Pelley and Underwood said their clients are legitimate medical marijuana patients and providers, and as such are protected by the Medical Use of Marijuana Act. Washington state law allows authorized medical marijuana patients to possess up to 15 plants and 24 ounces of harvested cannabis. Authorized providers can have up to 15 plants and 24 ounces, as well.

The law “specifically provides that qualifying patients and caregivers who are in possession of medical marijuana pursuant to a valid prescription … ‘shall not be penalized in any manner or denied any right or privilege’ as a result of the possession,” Pelley wrote in his pleading.

“Clearly, forfeiture of the medical marijuana and plants legally possessed cannot be considered anything other than a penalty … and that forfeiture cannot therefore be allowed under Washington law,” Pelley wrote.

Underwood wrote that while “there is no specific provision within the state statute for the return of property, not returning the property to Mr. Schaef would go against fundamental fairness.”

Sheeran, meanwhile, continues to claim that neither man has “lived up to the letter of the law” and therefore doesn’t deserve to get any of the marijuana back.

“While each (Casey and Schaef) has a doctor’s note saying he is authorized to use marijuana, it does not specify the specific condition from which he suffers,” the deputy prosecutor wrote, failing to mention that for medical privacy reasons, the law doesn’t require that information in the doctor’s note. “Defendants who fail to establish they have a ‘qualifying condition’ are not entitled to raise the medical marijuana defense.”

Qualifying conditions for medical marijuana under Washington state law include, among others, cancer, HIV, epilepsy, glaucoma, hepatitis C, and diseases that result in nausea, vomiting, seizures and muscle spasms.

If you’d like to email Deputy Prosecutor John Sheeran and tell him to give the two medical marijuana patients, Casey and Schaef, their property back, you can do so by clicking here.

Graphic: North End Club 420

Menu from the North End Club 420 site. Screen capture taken July 25, 2011.

​

Pot Drivers: Stoned Driving Is Uncharted Territory

Officers look for signs of drug impairment. Without a standard in most states for the amount of pot allowable in a driver’s system, police administer a lengthy 12-point examination. (Joe McHugh, CHP / July 3, 2011)

By Ralph Vartabedian, Los Angeles Times

July 2, 2011, 3:46 p.m.

It was his green tongue that helped give away Jimmy Candido Flores when police arrived at the fatal accident scene near Chico.

Flores had run off the road and killed a jogger, Carrie Jean Holliman, a 56-year-old Chico elementary school teacher. California Highway Patrol officers thought he might be impaired and conducted a sobriety examination. Flores’ tongue had a green coat typical of heavy marijuana users and a later test showed he had pot, as well as other drugs, in his blood.

After pleading guilty to manslaughter, Flores, a medical marijuana user, was sentenced in February to 10 years and 8 months in prison.

Holliman’s death and others like it across the nation hint at what experts say is an unrecognized crisis: stoned drivers.

The most recent assessment by the National Highway Traffic Safety Administration, based on random roadside checks, found that 16.3% of all drivers nationwide at night were on various legal and illegal impairing drugs, half them high on marijuana.

In California alone, nearly 1,000 deaths and injuries each year are blamed directly on drugged drivers, according to CHP data, and law enforcement puts much of the blame on the rapid growth of medical marijuana use in the last decade. Fatalities in crashes where drugs were the primary cause and alcohol was not involved jumped 55% over the 10 years ending in 2009.

“Marijuana is a significant and important contributing factor in a growing number of fatal accidents,” said Gil Kerlikowske, director of National Drug Control Policy in the White House and former Seattle police chief. “There is no question, not only from the data but from what I have heard in my career as a law enforcement officer.”

As the medical marijuana movement has gained speed — one-third of the states now allow such sales — federal officials are pursuing scientific research into the impairing effects of the drug.

The issue is compounded by the lack of a national standard on the amount of the drug that drivers should be allowed to have in their blood. While 13 states have adopted zero-tolerance laws, 35 states including California have no formal standard, and instead rely on the judgment of police to determine impairment.

Even the most cautious approach of zero tolerance is fraught with complex medical issues about whether residual low levels of marijuana can impair a driver days after the drug is smoked. Marijuana advocates say some state and federal officials are trying to make it impossible for individuals to use marijuana and drive legally for days or weeks afterward.

Marijuana is not nearly as well understood as alcohol, which has been the subject of statistical and medical research for decades.

“A lot of effort has gone into the study of drugged driving and marijuana, because that is the most prevalent drug, but we are not nearly to the point where we are with alcohol,” said Jeffrey P. Michael, the National Highway Traffic Safety Administration’s impaired-driving director. “We don’t know what level of marijuana impairs a driver.”

A $6-million study in Virginia Beach, Va., is attempting to remove any doubt that users of pot and other drugs are more likely to crash. Teams of federal researchers go to accident scenes and ask drivers to voluntarily provide samples of their blood. They later return to the same location, at the same time and on the same day of the week, asking two random motorists not involved in crashes for a blood sample.

The project aims to collect 7,500 blood samples to show whether drivers with specific blood levels of drugs are more likely to crash than those without the drugs, said John Lacey, a researcher at the nonprofit Pacific Institute for Research and Evaluation.

In other projects, test subjects are being given marijuana to smoke and then examined under high-powered scanners or put in advanced driving simulators to gauge how it affects their brains and their ability to drive.

Federal scientists envision a day when police could quickly swab saliva from drivers’ mouths and determine whether they have an illegal level of marijuana, but that will require years of research. Until then, police are in the same position they were with drunk driving in the 1950s, basing arrests on their professional judgment of each driver’s behavior and vital signs.

If police suspect a driver is stoned, they now administer a lengthy 12-point examination. The driver must walk a straight line and stand on one leg, estimate the passage of 30 seconds and have pupils, blood pressure and pulse checked.

Chuck Hayes, national coordinator for the International Assn. of Chiefs of Police based in Washington, D.C., says the system works well to identify impaired drivers, and any future legal limit or medical test would be just another tool rather than a revolutionary change.

“We are not concerned about levels or limits. We are concerned with impairment,” Hayes said.

Indeed, even among law enforcement experts, the need for a standard is debated. Many support tried-and-true policing methods that can ferret out stoned drivers.

“Everybody wants a magic number, because that makes it easy,” said Sarah Kerrigan, a toxicologist at Sam Houston State University in Texas and an expert witness in numerous trials. “To have a law that says above a certain level you are impaired is not scientifically supportable. I don’t think police need the tool, but my opinion may be in the minority.”

But federal officials and local prosecutors argue that the lack of a standard makes convictions harder to obtain.

In October, a San Diego jury acquitted Terry Barraclough, a 60-year-old technical writer and medical marijuana user, on manslaughter charges in a fatal crash that occurred shortly after he had smoked marijuana.

A blood test showed he had high levels of active marijuana ingredients in his blood, but the jury heard conflicting expert testimony from toxicologists about the possible effects.

Martin Doyle, the deputy district attorney who prosecuted Barraclough, said the acquittal showed that the lack of a formal legal limit on marijuana intoxication makes such prosecutions tough.

“We don’t have a limit in California and that made my prosecution very difficult,” Doyle said. “We have a lapse in the law.”

But defense attorney Michael Cindrich said the failed prosecution shows that the San Diego district attorney was targeting medical marijuana users and that any legal limit would be unfair to the people who rely on the drug to treat their problems.

Indeed, Anthony Cardoza, an attorney who represented Flores in the Chico accident, said his client was not impaired and that allegations about his green tongue were ridiculous. Flores’ guilty plea was prompted by other legal issues, including a prior conviction for a drunk driving accident that caused an injury.

Marilyn Huestis, a toxicologist and one of the nation’s top experts on marijuana at the National Institute on Drug Abuse who is directing several research programs, said she believed there is no amount of marijuana that a person can consume and drive safely immediately afterward.

Supporters of marijuana legalization agree that the drug can impair a driver, but argue that the effects wear off in a few hours. Huestis, however, said research was showing that the effects of marijuana can linger.

Marijuana’s main ingredient — delta-9 THC — stays in the blood for an hour or more and then breaks down into metabolites that are both psychoactive and inert. But the impairing effects can linger, even after the THC is no longer in the blood, Huestis said. Because it can be absorbed into body tissue and slowly released for days, Huestis believes that heavy chronic daily users may be impaired in ways that are not yet understood.

A complicating factor is the tendency of many marijuana users to also use alcohol, which can sharply amplify impairment. Very little research has been conducted to determine whether it is possible to set limits on a combination of such substances.

Paul Armentano, deputy director for the National Organization for the Reform of Marijuana Laws, said some states had laws that can punish users even when they are not high, pointing to a tough Arizona statute that allows conviction for impaired driving when an inert metabolite is detected in the blood.

Arizona officials said they wrote the law because there was no scientific agreement on how long marijuana impairs a driver. But proponents see something more sinister: an effort to put marijuana users in constant legal jeopardy.

“We are not setting a standard based on impairment, but one similar to saying that if you have one sip of alcohol you are too drunk to drive for the next week,” Armentano said.

ralph.vartabedian@latimes.com

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