The California Court of Appeal appears to have just handed a major victory to medical marijuana dispensaries that follow state law.
Until now, dispensary operators targeted by police have faced the prospect of trying to defend themselves in court without being allowed to argue a so-called affirmative defense citing protection under California's medical marijuana law.
Now, thanks an appeals court ruling that involves a Newport Beach marijuana collective operator convicted of possessing pot with the intent to sell, prosecutors might have a much harder time winning convictions in cases where collectives have followed state law.
The case in question involves a Newport Beach dispensary owner named Borzou Baniani, who was convicted of possession with the intent to sell after being denied an affirmative defense–an earlier trial had resulted in a hung jury.
"What was appealing about [Baniani] was that he definitely came to us with all the boxes checked off," said Christopher Glew, the attorney who handled Baniani's first trial and subsequent appeal. "He had all the initial dealings with attorneys to set everything up legitimately. His books were out there, and everything looked to be above board."
Baniani had formed his Herbal Run collective after a relative became sick and needed access to medical marijuana. In 2010, an undercover Newport Beach police officer used a doctor's note to obtain a small amount of marijuana, which became evidence in the possession with the intent to sell case filed against him.
"Why they even came to target him surprised me," said Glew. "This collective would seem to barely register. But they took it to two separate trials and an appeal. The question is now what will they do with it? A third trial? What are we doing with our resources?"
Two trials later, the court of appeals has ruled that his conviction should be overturned because the judge in the second trial erred in not allowing him to mention medical marijuana law in his own defense.
"This signals a change in the sense that DA's can't look at a case and say, 'I may be able to win just by proving the person possessed marijuana with the intent to sell,'" Glew said. "This decision is another giant step toward legitimacy for medical marijuana patients. It has the potential to end the prosecution of collectives that are attempting to follow the ambiguous laws."