Give back medical pot to legal user, court says

2013-07-10T00:00:00Z 2013-07-10T09:52:17Z Give back medical pot to legal user, court saysHoward Fischer Capitol Media Services Arizona Daily Star
July 10, 2013 12:00 am  • 

PHOENIX - Medical marijuana patients whose drugs are taken by police are entitled to get them back, the Arizona Supreme Court has ruled.

In a brief order, the justices rejected arguments by prosecutors that the drug is strictly regulated by the federal government, leaving police legally powerless to turn marijuana over to anyone else. They gave no reason for their ruling.

The order most immediately affects Valerie Okun, whose drugs were taken at a Border Patrol checkpoint on Interstate 8 near Yuma nearly two years ago. While she was never prosecuted - she has a valid medical marijuana card from California - sheriff's deputies refused to return the drugs.

Yuma County Sheriff Leon Wilmot said on Tuesday that he's still not ready to hand over the marijuana. He hopes to get the case before the U.S. Supreme Court.

If he succeeds, it would be an opportunity for the nation's high court to look at the obvious conflict between laws in places like Arizona, where at least some individuals can buy and have marijuana, and federal statutes that consider possession by anyone other than authorized researchers a felony - potentially leading to a definitive ruling on whether states have the right to enact their own pot laws.

Yavapai County Attorney Sheila Polk, said federal court intervention is necessary.

"I find it a bit frustrating that Arizona's marching ahead with facilitating and implementing the availability of marijuana, a controlled substance, in conflict with federal law," said Polk, who chairs the Arizona Prosecuting Attorneys' Advisory Council. She said a court needs to "deal with the issue of federal preemption head-on."

In Okun's case, her marijuana and hashish were turned over to county officials. But charges against her were dropped because she is enrolled in California's Medical Marijuana Program, which Arizona recognizes.

The Yuma County Sheriff's Department, however, is continuing to refuse Okun's request to return her marijuana, despite several court rulings ordering them to do so.

Attorneys for the sheriff said Arizona law requires any marijuana seized in connection with a drug offense be forfeited to the state and that the sheriff would be violating federal law by giving the drug to someone else - positions state courts have rejected.

The sheriff said he believes the ruling should not stand, which is why he wants to seek U.S. Supreme Court review.

"It has to do with the courts telling me to commit a crime," he said. "As far as I'm concerned, that's not how we do business."

The issue, the sheriff said, is the conflict between state and federal law.

"I understand the fact that the Arizona court could give me, basically, immunity if I did return this stuff," Wilmot said. "But the bottom line is, they can't give me immunity from the federal government ... because it is a federal-law violation."

"It has to do with the courts telling me to commit a crime. As far as I'm concerned, that's not how we do business."

Leon Wilmot

Yuma County sheriff

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