Nevada court strikes down medical marijuana law

A judge says the distribution law is vague and poorly constructed. The state Supreme Court probably will hear the case.

By Alicia Gallegos — Posted March 26, 2012

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In a case likely headed to the Supreme Court of Nevada, a district judge has declared the state’s medical marijuana distribution law unconstitutional. The statute does not provide a reasonable method for patients to obtain medical marijuana lawfully, the court said.

A review by the state high court hopefully will bring more clarification to the law after split opinions by lower courts, said Larry Matheis, executive director of the Nevada State Medical Assn. The NSMA was not involved with the case and has not taken a formal position on the distribution law.

“The inability to create a system for growing and distributing the product has been the problem since the passage of implementing statutes and moots the law as a practical measure,” Matheis said in an email. “The issue lacks clarity, which places physicians and their patients in an uncertain position regarding law enforcement at this point.”

Nevada residents in 2000 voted to change the state Constitution to allow for medical marijuana production and possession. Qualified patients must have a chronic, debilitating disease and receive a medical marijuana certificate from a doctor. Under the amendment, the Legislature was charged with creating appropriate methods for patients to obtain the drug. But the statutory process set forth by the state was confusing and put patients at risk for criminal prosecution, said Robert M. Draskovich, a Las Vegas criminal defense attorney representing two residents who challenged the law.

For instance, the law said distributors could not receive compensation for medical marijuana, meaning they would have to grow and give the drug away for free, Draskovich said. The statute, which conflicted with other state laws prohibiting marijuana possession and distribution, also said distributors could possess only enough cannibis for one customer at a time.

In his March 2 opinion, Las Vegas District Judge Donald Mosley called the distribution law vague and badly written.

“The law falls short in providing a realistic manner in which a qualified purchaser and a qualified distributor of marijuana may function, thus frustrating the clear intent of the Nevada constitutional amendment,” he said. “It is apparent to the court that the statutory scheme set out for the lawful distribution of medical marijuana is either poorly contemplated or purposely constructed to frustrate the implementation of constitutionally mandated access to the substance.”

In striking down the law, Mosley dismissed charges against two Nevada residents who were accused of drug trafficking. A spokeswoman for the Clark County prosecutor’s office declined to comment on the ruling.

The decision is a victory for medical marijuana patients and distributors who were constantly in fear of being arrested for exercising their rights under state law, Draskovich said. The decision also provides peace of mind for doctors who write medical marijuana recommendations for patients, he said. Although the law said doctors who recommend patients for the drug are exempt from prosecution, Draskovich said there still was concern among physicians that they could land in legal trouble for certifying some patients. He hopes the ruling will compel the state to rewrite the law.

Because Mosley’s decision conflicts with another lower court’s opinion, the state high court ultimately is likely to decide the issue. At this article’s deadline, the state Supreme Court had not yet been asked to take the cases.

Calif. high court to review similar case

The Supreme Court of California has agreed to hear four cases related to medical marijuana dispensaries. State courts have been split over whether localities can crack down on marijuana shops.

California is one of 16 states that have legalized medical marijuana. Many of the statutes have been subject to legal challenges asserting that state prerequisites for obtaining medical marijuana are too strict.

“It’s chaos,” Dale Gieringer said of the contradictory court opinions. He’s director for the California National Organization for Reform of Marijuana Laws, which supports legalization. “We’re going to have to wait for the [California] Supreme Court to sort this out.”

Several governors, as well as the California Medical Assn., are pushing to reclassify marijuana. In October 2011, the CMA said reclassification will give physicians access to more research on the drug in order to counsel patients better.

A CMA spokeswoman said the association had not heard an update on its request from the government. A Drug Enforcement Administration spokeswoman said the agency continues to review the petition.

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Case at a glance

Is a Nevada law outlining distribution rules for medical marijuana constitutional?

The Clark County District Court of Nevada said no. The court ruled that the distribution law was too vague and did not provide a reasonable method for patients to obtain medical marijuana lawfully.

Impact: The case may be considered by the Nevada Supreme Court. Medical marijuana supporters hope the law will be changed to allow doctors and patients to recommend and obtain medical marijuana more easily and without fear of criminal prosecution.

The State of Nevada v. Nathan Hamilton and Leonard Schwingdorf, Clark County District Court of Nevada, March 2

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