December 12, 2012 in City

Medical marijuana dispenser’s conviction overturned

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

While the case provides needed clarification in state law over how medical marijuana users can legally fill their prescriptions, U.S. Attorney Mike Ormsby said federal prosecutors will continue to target certain operations.

“They are not legal under federal law, regardless of what the state law says,” Ormsby said. “If we found an operating dispensary in Spokane County or the Eastern District of Washington … selling a large volume and located close to a school and meets a number of factors we have identified, we would not hesitate to take action to close it down.”

Still, defense attorney Frank Cikutovich called the ruling a major victory for his client, Scott Q. Shupe, who was the first to open a medical marijuana dispensary in Spokane based on the original 1998 voter-approved law legalizing medicinal use of marijuana.

Shupe “was a maverick. He designed his business based on his and my interpretation of the full compliance with state law,” Cikutovich said. “He was the first one to put his butt on the line and test it. My hope is that we can get to the point where this can help the patients that this law was designed for.”

Jen Lorz, co-owner of the Northside Alternative Wellness Center at 4811 N. Market St., said the decision by the Division III Court of Appeals was great but acknowledged the future of local medical marijuana dispensaries depends on how federal prosecutors react.

“What we are fighting for is our patients,” Lorz said. “We are not drug dealers. We are legitimate professionals who know what we are doing and who are helping people get the medicine they need.”

In the 2-1 decision, Judges Dennis Sweeney and Teresa Kulik ruled that Spokane police lacked probable cause to search Shupe’s residence and business and that Spokane County prosecutors lacked sufficient evidence to justify Shupe’s 2011 convictions for drug trafficking.

But the opinion went further, which was the focus of the dissent by Judge Kevin Korsmo, as Sweeney and Kulik agreed with Cikutovich that the language of the law should be interpreted to allow medical marijuana providers to sell marijuana to one customer at a time rather than the prosecution’s interpretation of providers selling it to only one person at all.

“We have been waiting for the legal answer and it looks like we finally got one. I couldn’t be happier,” Cikutovich said. “The feds should notice that there are people who need this medicine legitimately.”

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 is not related in any way to Initiative 502, the voter-approved law that allows residents to legally possess an ounce or less of marijuana.

However, within a week of Shupe’s conviction in March 2011 federal authorities sent letters to all other operating dispensaries warning them of impending legal action if they did not stop. Most dispensaries shut down but federal prosecutors did indict a handful of others who continued, Cikutovich said.

Ormsby acknowledged the quandary of voter-passed state law versus corresponding federal statutes that criminalize possession, manufacture and distribution of marijuana. As a result, Justice Department officials are considering legal challenges and official statements to clarify how they will react to the Washington marijuana laws.

“The issue has a lot of ramifications, including issues outside of the marijuana” debate, Ormsby said. “If the state is going to make a decision to move forward and implement all the provisions of Initiative 502, they will have to spend significant time and therefore money. If we intend to challenge the implementation of the laws, it would be better for the state and taxpayers to let the state know before that occurs.”

As for Shupe, he testified he was selling 10 pounds a week to 1,280 patients at his Change dispensary, formerly located at 1514 W. Northwest Blvd.

As a result of the decision Tuesday, Cikutovich said Spokane police will be required to return more than $8,000 in cash and three jars filled with marijuana that were seized during the arrest.

Shupe never spent a day in prison following his conviction. Instead, Superior Court Judge Tari Eitzen delayed Shupe’s prison term until the appeal decision, which came Tuesday.

“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 told Shupe in April 2011. “But the jury found you guilty. That’s what I’m stuck with.”

Cikutovich noted that both state and federal prosecutors in King County have allowed dispensaries to remain open for the past five years.

“As soon as you cross the mountains, it’s a whole different situation,” he said. “It shouldn’t be that way when you are in the same state.”


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