December 11, 2012 in City

Appeals Court sides with pot dispensaries

By The Spokesman-Review
 

Scott Shupe of Change, a medical marijuana dispensary in Spokane, was arrested in Oregon in August with 4 pounds of weed and more than $18,000 in cash.
(Full-size photo)

The drug-trafficking convictions of the man who operated Spokane’s first medical marijuana dispensary were reversed today in a ruling that also appears to clear the way for commercial dispensaries to operate legally in Eastern Washington.

But while the case provides needed clarification in state law over how medical marijuana users can legally fill their prescriptions, the wild card remains how federal authorities will react to what they’ve called illegal commercial trafficking operations, local defense attorney Frank Cikutovich said.

“I couldn’t be happier,” Cikutovich said of the ruling to reverse the convictions of Scott Q. Shupe. “My hope is that we can get to the point where this can help patients that this law was designed for.”

In a 2-1 decision by the Division III Court of Appeals, judges first ruled that Spokane Police did not have probable cause to search Shupe’s residence and business and that Spokane County prosecutors did not have sufficient evidence to justify Shupe’s convictions.

But the opinion went further, and appears to have agreed with Shupe and Cikutovich that the law allows providers to sell marijuana to one person at a time rather than the state’s interpretation of providers selling only to one person, period.

“As far as I know, there are no other (pending) dispensary cases in the state,” Cikutovich said. “They let all the dispensaries stay open until we got an answer.”

Cikutovich said federal authorities previously told him that they would not interfere with dispensaries that operated under the strict letter of the state law, which was first enacted in 1998 and is not related to the recently enacted law allowing Washington residents to legally possess an ounce or less of marijuana.

Shupe “was a maverick. He designed his business based on his and my interpretation of the full compliance with state law,” Cikutovich. “He was the first one to put his butt on the line and test it.”

Within a week of Shupe’s conviction in March 2011, however, federal authorities sent letters to all other operating dispensaries, warning them of impending legal action if they did not stop selling marijuana. Most dispensaries shut down but federal prosecutors indicted three or four others who continued, Cikutovich said.

U.S. Attorney Mike Ormsby could not immediately be reached for comment.

Shupe was convicted in 2011 of multiple counts of drug trafficking, but Superior Court Judge Tari Eitzen delayed Shupe’s prison term until the appeal decision.

“In this case it was clear you didn’t intend to break the law, which is in a state of flux as we speak,” Eitzen said in April 2011. “But the jury found you guilty. That’s what I’m stuck with.”

At the time, Deputy Spokane County Prosecutor John Grasso, who heads his office’s drug unit, said his interpretation of the law allows a person holding a medical marijuana card to legally purchase the drug. But, the person selling that marijuana would be breaking the law.

Shupe testified he was selling 10 pounds of marijuana a week to 1,280 patients.

“I had no intention of breaking the law,” Shupe said at his April 2011 sentencing. “I wanted to be the best dispensary on the planet. I still don’t see that I did anything wrong.”

The case was watched closely by authorities and dispensary operators alike, with both sides hoping for guidance on what many argue is a confusing state law.

That answer appears to have come today, with Judges Dennis Sweeney and Teresa Kulik voting for the majority. Judge Kevin Korsmo authored the dissent, saying that Sweeney and Kulik should not have ventured into giving an advisory opinion about the law governing dispensaries.


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