By Tristan Scott
A medical marijuana advocacy group is suing the Flathead County attorney in an effort to clarify whether Montana law allows medical marijuana caregivers to transfer their pot to other caregivers without the threat of criminal prosecution.
A Kalispell attorney representing the Medical Marijuana Growers Association, a not-for-profit outfit that claims about half the state’s medical marijuana patients and caregivers as members, said he filed suit on behalf of two men facing felony drug charges after a traffic stop by law enforcement agents revealed several pounds of pot in their possession.
One of the men is a registered caregiver while the other is a card holder, according to Tim Baldwin, the attorney who this week filed the lawsuit seeking declaratory judgment in the matter. The men were driving the pot from Kalispell to Cascade County for delivery to another caregiver, he said.
The litigation is intended to disambiguate the current state law and show that the widespread practice of transferring medical marijuana between registered caregivers, either themselves or through a third party, is legal and should not be prosecuted, Baldwin said. It also asks a judge to acknowledge that caregivers can cultivate marijuana for other caregivers.
Flathead County Attorney Ed Corrigan, who is named as a defendant in his official capacity only, had not been served with the lawsuit as of Friday and declined to comment.
“This really needs to be clarified because there are a lot of caregivers operating under the presumption that what they are doing is perfectly legal, while law enforcement agencies are operating under another presumption,” Baldwin, a former prosecutor, said in a telephone interview. “If one caregiver can be prosecuted on that presumption than anyone can.”
Baldwin said medical marijuana providers have an obligation and a duty to provide for their patients, and that “the duty practically requires them to deliver, transport, or transfer marijuana and its paraphernalia to another caregiver.”
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Although Baldwin declined to name the two men, court papers identify them as Leif Erickson and Robin Ruiz. They are referred to in the lawsuit as Courier 1 and Courier 2. The lawsuit also refers to three unidentified plaintiffs as Caregiver 1, Caregiver 2 and Caregiver 3, and characterizes them as witnesses.
Erickson and Ruiz were stopped on U.S. Highway 2 near Lake Five Road on Feb. 3 and were arrested by deputies with the Flathead County Sheriff’s Office and the Northwest Drug Task Force. A search of the vehicle revealed 3 pounds of marijuana, 300 marijuana capsules and five vials of suspected THC honey, according to court documents. The men were subsequently charged with criminal possession with intent to distribute, a felony punishable by up to 20 years in prison and a fine of $50,000. They have pleaded not guilty.
“There are a lot of questions and confusion as to what is lawful right now,” Baldwin said. “There are numerous investigations and prosecutions being pursued based on the presumption that it is not lawful for one caregiver to transport medical marijuana to another caregiver. So every caregiver faces prison based on that legal presumption.”
Northwest Drug Task Force agent Dave Herman, who was the primary investigating and arresting officer in the case, said in an interview on March 15 at the Flathead County Attorney’s Office that a caregiver cannot legally deliver, transport or transfer marijuana and its paraphernalia to another caregiver, according to Baldwin.
“Numerous other Montana law enforcement agencies, including the Attorney General of the state of Montana, have expressed the same legal presumption as expressed by Dave Herman,” the lawsuit states. “Based upon this legal presumption, many investigations, arrests and prosecutions are being conducted and the rights, status and legal relationship of caregivers in Montana and in Flathead County are in real and actual risk, jeopardy and controversy.”
Chris Lindsey, a Helena attorney representing Ruiz and Erickson in the criminal matter, wrote in an affidavit filed along with the lawsuit that even the highest state law enforcement officials perceive caregiver-to-caregiver transactions as a “chargeable” offense.
Specifically, Lindsey states that he had a conversation last month with Assistant Attorney General Chad Parker, who prosecutes drug cases and said transfers between medical marijuana caregivers are unlawful and will be prosecuted.
“As a result of this belief, various law enforcement divisions have acted (on) this understanding, as in the instant case,” Lindsey wrote.
After Corrigan has an opportunity to respond to the lawsuit, Baldwin said he will file a detailed brief supporting his arguments.
Reporter Tristan Scott can be reached at (406) 260-4197 or at [email protected].
Article from The Missoulian
