MEDICAL MARIJUANA: WORKING TO SMOKE OUT ABUSERS

State System Works for Most of 350 Participants, but Some Find Loopholes

CARSON CITY - Three years ago, Pierre Werner went to prison in New Jersey after being convicted of conspiring to distribute 170 pounds of marijuana.

He moved to Southern Nevada and secured a registration card from the state Department of Agriculture that legally permits him to grow as many as seven marijuana plants.

"I'm bipolar," said Werner, a congenial man who admits he is stoned most of the time.  "I'm mental.  I'm crazy.  I have an illness, and cannabis has always been my medicine."

Don Henderson, the state agriculture director, doesn't think so.  His agency, directed by the Legislature to run the medical marijuana program, revoked Werner's license Feb.  25.

The revocation came after Werner, 32, was arrested by U.S.  marshals and charged with attempting to distribute marijuana.  Police raided his Las Vegas home Jan.  17 and confiscated 27 marijuana plants.  Werner said prosecutors have offered him a deal to plead guilty to a misdemeanor and pay a $500 fine.

But before taking the deal, he wants his plants and growing equipment back.  The state's medical marijuana program has 350 participants.  As far as officials know, Werner is the only participant to cause concern since the state program began Oct.  1, 2001.

"For the most part, we don't see abuses going on," Las Vegas police Lt.  Stan Olsen said.  "Are there going to be people who abuse it? Absolutely yes.  He is the only one I am aware of with whom we have had problems."

The arrests haven't stopped Werner.  He says he still grows marijuana and sells or gives it to about 20 other medical marijuana patients through his enterprise, Primary Caregivers and Consultants.  For a fee, he connects people with health problems to doctors willing to recommend that they use marijuana.

Werner's criminal history escaped detection because the state-required fingerprint check only checked records in Western states, according to Jennifer Bartlett, manager of the Nevada medical marijuana program.

With soon-to-be implemented registration fees, the Agriculture Department will conduct national checks through FBI databases and detect people like Werner before granting them registration cards, Henderson said.

"I believe my criminal history has nothing to do with my health," responds Werner, who spent eight months in a New Jersey prison.  "I need medical marijuana to be healthy."

Gina Session, the deputy attorney general who advises the Agriculture Department, contends Werner "obviously lied on his application" about the New Jersey arrest or he never would have been granted a Nevada license.  Werner points out he was convicted of a "conspiracy," not the actual sale of drugs.

Nevada law only prohibits people from acquiring a medical marijuana card who have been convicted on sale of controlled substances charges.  Henderson, Bartlett and police insist the program has worked well overall.  "As in any program, some people stand out," Bartlett said.  "The majority of the participants have been great.  I am surprised by the large number of people who have said how much they appreciate this program.  It has changed my perspective.  This program has really helped some people."

Werner had 30 mature and 13 immature marijuana plants at the time he was arrested by marshals, Olsen said, not the 27 he says were confiscated.

Like Werner, Southern Nevadan medical marijuana patient Bill Kosinski, 31, has begun a business, Medical Marijuana Consultants of Nevada, to help people acquire marijuana cards.

Unlike Werner, he will not sell marijuana to his clients.  "He is a little more radical than I am," Kosinski said.  "I am trying to be more professional."

But Kosinski refuses to bad-mouth Werner, who helped him secure his medical marijuana card.

"Marijuana is less harmful than alcohol or tobacco," Kosinski said.  "People are still scared because they call it a drug." About 170 different doctors have recommended marijuana for their patients.  A few doctors have recommended many people, according to Bartlett.  She cannot under law advise patients which doctors to contact.  The Legislature did not appropriate any money to the Agriculture Department to operate the program, but Henderson will begin implementing fees on participants starting in July.

There will be a $150 annual registration charge and a $50 charge for mailing out applications forms.  Five of six people who are mailed applications never return them.

The program was created after voters overwhelmingly passed a constitutional amendment in 1998 and 2000 that allows people with medical problems to use marijuana.

With recommendations from doctors, they can grow marijuana to treat chronic or debilitating medical problems like glaucoma and cancer.  State law requires the names of participants to remain confidential.  The Agriculture Department cannot even share the names of participants who want to talk with other people in the program.  The law permits participants to keep no more than an ounce of usable marijuana on hand.  They can grow seven plants, but only three can be mature.  Kosinski "medicates" himself four times a day for chronic back pain.  He swears he never was a hippie, that he used marijuana only few times as a college student and turned to it regularly only after hurting his back in a car accident.

Werner will challenge his arrest and demand that authorities return his plants and hydroponic growing equipment.  He was arrested after waving a plant in front of a neighbor, who promptly called police.  Although his act might not have been discreet, Werner said he does not see why he must hide something that is legal for him to use.  He notes the Nevada medical marijuana law includes an "affirmative defense" argument, first pointed out in the August 2002 issue of Nevada Lawyer by a legislative staff attorney.

"As long as you are providing medical marijuana for yourself or others, they cannot bust you for delivery or cultivation," Werner said.  "It is allowed under the affirmative defense." That law states a medical marijuana patient can argue in court as a defense that his doctor believes he needed more than the seven allowed marijuana plants or that he needed to grow more to deliver to other patients.

Assemblywoman Chris Giunchigliani, D-Las Vegas, said she was not aware of the affirmative defense argument when she drew up the medical marijuana law at the 2001 Legislature.

Giunchigliani lifted the medical marijuana law from Oregon.  Hearing records show the affirmative defense argument never was mentioned by Nevada lawmakers.

"Let's use some common sense here," she said.  "The statute was not to allow people to become distributors."

Session, the deputy attorney general, said it appears the affirmative defense statute allows more marijuana than the seven plants or one usable ounce.

"But it looks to me a hard defense to make," she said.  "It would all depend on the amount.  If it is an ounce and a half, maybe.  But 2 pounds? I don't see a physician coming in and saying he has a condition where he needs 27 plants."