|Steve Marcus/Las Vegas Sun|
|District Court Judge Donald Mosley ruled that Nevada’s medical marijuana distribution law is unconstitutional because it doesn’t provide a reasonable way for patients to lawfully get medicinal cannabis|
In a case almost certainly headed to the Nevada Supreme Court, a district judge has ruled that the state’s medical marijuana distribution law is unconstitutional. According to Las Vegas District Court Judge Donald Mosley, the law does not provide a reasonable method for patients to get medical marijuana lawfully.
A review by the state supreme court could bring more clarification to the law after split opinions by lower courts, according to Larry Matheis, executive director of the Nevada State Medical Association (NSMA), reports Alicia Gallegos at American Medical News
. The NSMA was not involved in 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. “The issue lacks clarity, which places physicians and their patients in an uncertain position regarding law enforcement at this point.”
|Sam Morris/Las Vegas Sun|
|Larry Matheis, Nevada State Medical Association: “The issue lacks clarity, which places physicians and their patients in an uncertain position regarding law enforcement at this point”|
Nevada residents in 2000 approved changing their state Constitution to allow for medicinal cannabis production and possession. Qualified patients are required to have a chronic, debilitating disease and must receive a medical marijuana recommendation from a doctor.
Under the constitutional amendment, the Legislature put in charge of creating appropriate avenues for patients to obtain marijuana. But the statutory process set forth by the state was quite confusing and put patients at risk for criminal prosecution, according to Robert M. Draskovich, a Las Vegas criminal defense attorney representing two residents who challenged the law.
For example, according to the law, distributors could not receive compensation for medical marijuana, meaning they would have to grow and give away cannabis for free, according to Draskovich. The statute—which conflicted with other state laws prohibiting marijuana possession and distribution—also said distributors could possess only enough cannabis for one customer at a time.
Judge Mosley called the distribution law vague and badly written in his March 2 opinion in the case of The State of Nevada v. Nathan Hamilton and Leonard Schwingdorf.
“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,” Judge Mosley 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 dog constitutionally mandated access to the substance.”
In striking down the law, Judge Mosley dismissed charges against two Nevada residents who were accused of “drug trafficking.” A spokeswoman for the Clark County prosecutor’s office, not surprisingly, refused to comment on the ruling.
The decision is a big victory for medical marijuana patients and providers who were constantly in fear of being arrested for exercising their rights under state law, according to Draskovich. The decision also provides more peace of mind for doctors who write medicinal cannabis recommendations for patients, he said.
Although the law said doctors who recommend marijuana to patients are exempt from prosecution, there was still concern among physicians that they could get in trouble for certifying some patients, Draskovich said. He said he hopes the court ruling will force Nevada to rewrite its medical marijuana distribution law.
Because Judge Mosley’s decision conflicts with another lower court’s opinion, the matter is likely to land in the Nevada Supreme Court. The high court has not yet been asked to take the case.