Pot: Judge delays ruling on immunity until trial

 Four operators of a medical marijuana collective raided by Tuolumne County authorities last May claimed a small victory in Tuolumne County Superior Court on Wednesday.

Presiding Judge Eric L. DuTemple decided to wait for evidence presented at trial before ruling on whether the four defendants could argue they were immune from charges of selling marijuana under state laws regulating the substance for medicinal purposes.

Jason Brisco, 42, of Soulsbyville, Jim Brisco, 69, of Sonora, Renee Rivera, 41, of Soulsbyville, and Rhett Schuller, 40, of Sonora, were arrested May 25, 2011, after a Tuolumne County Sheriff’s narcotics team raided their Foothill Care Collective on Mono Way in Sonora.

Two other marijuana dispensaries operating within the county were also raided that same day, resulting in five other arrests.  

A trial is scheduled to begin Wednesday.    

Acting Tuolumne County District Attorney Michael Knowles argued in favor of eliminating jury instructions that would allow the Foothill Care Collective operators to claim they were abiding by the rules stipulated in the Compassionate Care Act of 1996 and SB 420, passed by the state Legislature in 2003.    

“It was the Compassionate Care Act,” he said. “Not the marijuana commerce, marijuana distribution, or marijuana use act.”   

Knowles said provisions within the state laws only protect primary caregivers who cultivate and distribute medical marijuana to patients with doctor recommendations unable to grow it themselves.   

He also cited case law protecting the transportation of medical marijuana only under the circumstances that a designated caregiver is transporting it directly to a card-holding patient.   

“The sale of marijuana is not immunized by (either) act,” Knowles said. “The only thing they did is sell marijuana and make it available to people.”   

There is language in SB 420 allowing for collective cultivation, but Knowles said its “critical” that no cultivation charges were filed in this case.   

Sarah White, a Folsom-based attorney representing Rivera, Schuller and the Briscos, argued that both acts do allow for the formation of collectives like the one the four operated on Mono Way.    

She also cited recent legislation that she argued legitimizes “storefront” medical marijuana dispensaries or collectives.    

The legislation, AB 2650, which went into effect Jan. 1, 2011, sets state-mandated zoning regulations on collectives, dispensaries or cooperatives that have a “storefront or mobile retail outlet.”    

“It makes no sense for the Legislature to make a law that regulates them if they did not intend for them to be legal,” White said.    

The group acquired the proper medical and business licenses before opening the collective and always checked patients’ identification, medical marijuana cards and doctor recommendations, White argued.    

“There is nothing to support not allowing this defense,” she said.    

DuTemple said he has yet to see enough evidence to decide either way.    

White said she was “pleased” with the outcome of the hearing.    

“(Prosecutors) we’re trying to keep out mention of the medical marijuana defense entirely,” she said. “I was able to show that’s not allowed by law.”    

White said she believes the state laws allow for collectives and dispensaries to form because typical pharmacies abide by federal laws that bar them from selling the substance.    

“We need clarity from the Legislature,” she said.    

Jason Brisco said it all comes down to DuTemple’s decision regarding the defense.    

“If he allows the defense we win, if he doesn’t we lose,” he said.    

Brisco said the group’s patients have supported them since the raid by helping with everything from bail money to attorney fees.    

Some of the patients the collective served used medical marijuana to alleviate symptoms from illnesses including cancer, HIV and Crohn’s disease, Brisco said.    

“We were providing a service to the people who needed it,” he said.