Nevada Marijuana Distribution Law Declared UnconstitutionalBy Thomas H. Clarke March 5, 2012
Matter likely to be decided by Nevada Supreme Court
LAS VEGAS, NV — A Las Vegas district court judge declared Nevada’s medical marijuana law unconstitutional Friday, while criticizing the state’s lack of a defined distribution system for the medicine.
“The law falls short however 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,” the judge’s decision read.
As a result of Friday’s ruling, Judge Donald Mosley dismissed a drug trafficking case against Nathan Hamilton and Leonard Schwingdorf, the owners of Sin City Co-Op, a storefront medical marijuana dispensary in Las Vegas.
“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,” Judge Mosley wrote in his decision.
Mosley added that he is not a proponent of medical marijuana, but is sworn to uphold the state’s constitution, which was amended in 2000 to allow legal protection for medical marijuana patients. Mosley said the law regulating medical marijuana is confusing at best.
“Well why don’t they (the Legislature) make up their mind if they want to make it legal or not,” the Mosley said. “I’m looking at it thinking I can’t make any sense out of this law.”
Nevada voters overwhelmingly passed an amendment to the state constitution in November 2000 that recognizes the use of medical marijuana. The law established a confidential state-run patient registry that issues identification cards to qualifying patients, but did not set guidelines for medical marijuana dispensaries. Under the law, patients or their primary caregivers may legally possess up to one ounce of marijuana, and may grow up to seven marijuana plants, of which no more than three may be mature.
Prosecutors said that Hamilton and Schwingdorf, in opening their medical marijuana dispensary in Las Vegas, violated the law because they were growing more than the seven plants allowed, and they were accepting a “specific suggested donation” for supplying marijuana to patients, which is considered an illegal “consideration” for the sale of marijuana.
But Judge Mosley disagreed with prosecutors, saying that under their interpretation of the law, patients would have to rely on the good will of others in order to receive their medicine. “It is absurd to suppose that from an unspecified source ‘free’ marijuana will be provided to those who are lawfully empowered to receive it,” Mosley wrote in his decision. “Are people supposed to give it away? I mean it just makes no sense.”
Mosley said that the medical marijuana law falls short in providing a “realistic manner” in which qualified patients can obtain their medicine.
Mosley also criticized the amount of medical marijuana allowed under state law as too little. “This arrangement is of course ridiculous and in effect would make impossible any commercial distribution of medical marijuana,” Mosley said.
In another case Friday, fellow District Court justice Douglas Smith issued a conflicting decision by allowing defendants of another Las Vegas medical marijuana dispensary to be prosecuted for distribution. Because of the two contradictory cases, the matter is likely to be decided by the Nevada Supreme Court.
The dispensaries provided medical marijuana for patients, but the marijuana was labeled “not for sale.” Dispensary workers argue that they would ask for a suggested donation for the medicine, but emphasize the donation was not mandatory, keeping them in compliance with state laws prohibiting the sale of marijuana.
There are more than a dozen similar cases pending in Nevada since local authorities have cracked down and closed nearly all the medical marijuana dispensaries in the state.