Hawii MMJ cases

CASE SUMMARY

PROCEDURAL POSTURE: After the Third Circuit Court (Hawaii) denied defendant's motion to dismiss, he was convicted of commercial promotion of marijuana in the second degree, in violation of Haw. Rev. Stat. § 712-1249.5 (1)(c) (1993), and prohibited acts relating to drug paraphernalia, in violation of Haw. Rev. Stat. § 329-43.5(a) (1993). He appealed.

OVERVIEW: Police seized from defendant's residence 82 marijuana plants and paraphernalia used to smoke and grow marijuana. He filed a motion to dismiss on grounds that (1) Haw. Rev. Stat. § 712-1240.1 provided a complete defense, as defendant had a prescription to use marijuana; and (2) the prosecution excluded "clearly exculpatory" evidence from the grand jury. The supreme court held that the trial court properly denied the motion. As defendant's counsel had admitted that marijuana could not be legally prescribed, he was judicially estopped from relying on § 712-1240.1. Cal. Health and Safety Code § 11362.5 (1996), allowing possession of marijuana for medical purposes, did not authorize defendant to possess marijuana in violation of Hawaiian law, but only forbade prosecution under California law. Therefore, evidence relating to defendant's § 11362.5 defense was not "clearly excuplatory." The trial court did not clearly err in finding that the fact that defendant's religion required him to use cannabis once a year did not justify his possession of over 50 plants and four pipes, and that, accordingly, his free exercise of religion was not burdened by his prosecution under the drug laws.

OUTCOME: The judgment was affirmed.


CORE TERMS: marijuana, religion, cannabis, promotion, free exercise, cultivation, church, marijuana plants, religious, prescription, patient, drug paraphernalia, unconstitutionally, possessed, sincerely, burdened, plant, religious practices, compelling interest, preponderance, infringement, overbreadth, reverend, jury trial, prosecutor's, cultivate, caregiver, consume, lawful, acts relating

LexisNexis® Headnotes Hide Headnotes


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
HN1Go to the description of this Headnote. See Haw. Rev. Stat. § 712-1249.5(1)(c) (1993).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Drug Paraphernalia > General Overview
HN2Go to the description of this Headnote. See Haw. Rev. Stat. § 329-43.5(a) (1993).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Delivery, Distribution & Sale > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN3Go to the description of this Headnote. See former Haw. Rev. Stat. § 712-1240.1 (1993).


Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > General Overview
HN4Go to the description of this Headnote. A trial court's conclusions of law are reviewed de novo under the right/wrong standard.


Civil Procedure > Appeals > Standards of Review > De Novo Review
Constitutional Law > The Judiciary > Case or Controversy > Constitutional Questions > General Overview
Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > General Overview
HN5Go to the description of this Headnote. The Hawaii Supreme Court answers questions of constitutional law de novo, exercising its own independent judgment based on the facts of the case.


Civil Procedure > Dismissals > Involuntary Dismissals > Failures to Prosecute
Criminal Law & Procedure > Accusatory Instruments > Dismissal > General Overview
Criminal Law & Procedure > Accusatory Instruments > Indictments > General Overview
HN6Go to the description of this Headnote. When a defendant alleges that the prosecution has improperly withheld evidence from the grand jury, a court should dismiss an indictment only when the prosecutor failed to present evidence that clearly would have negated guilt or presented evidence that would undermine the authority of the grand jury to act at all.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Delivery, Distribution & Sale > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN7Go to the description of this Headnote. See Haw. Rev. Stat. § 712-1240.1 (2000).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Delivery, Distribution & Sale > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Governments > Legislation > Effect & Operation > Prospective Operation
HN8Go to the description of this Headnote. 2000 Haw. Sess. L. Act 228 shall not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date. Act 228, § 5 at 600.


Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > Judicial Estoppel
HN9Go to the description of this Headnote. Pursuant to the doctrine of judicial estoppel, a party will not be permitted to maintain inconsistent positions or to take a position in regard to a matter which is directly contrary to, or inconsistent with, one previously assumed by him, at least where he had, or was chargeable with, full knowledge of the facts, and another will be prejudiced by his action. Judicial estoppel partakes of positive rules of procedure based on manifest justice and, to a greater or lesser degree, on considerations of the orderliness, regularity, and expedition of litigation. This doctrine prevents parties from playing fast and loose with the court or blowing hot and cold during the course of litigation.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN10Go to the description of this Headnote. See Cal. Health and Safety Code § 11362.5 (1996).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN11Go to the description of this Headnote. In interpreting Cal. Health and Safety Code § 11362.5 (1996), the Supreme Court of California has held that a grant of limited immunity from prosecution must properly be found in § 11362.5(d), which provides that Cal. Health and Safety Code §§ 11357 and 11358 shall not apply to qualified patients and primary caregivers (Cal. Health and Safety § 11362.5(d)), particularly in view of its purpose of prohibiting criminal prosecution and sanction of such qualified patients and primary caregivers for such crimes (§ 11362.5(b)(1)(B)).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > Elements
Criminal Law & Procedure > Defenses > General Overview
HN12Go to the description of this Headnote. Both the plain language of Cal. Health and Safety Code § 11362.5 (1996) and its interpretation by the Supreme Court of California indicate that § 11362.5 does not grant persons a right to possess marijuana. Rather, the California law grants certain qualified persons immunity from prosecution under Cal. Health and Safety Code §§ 11357 or 11358.


Constitutional Law > The Judiciary > Case or Controversy > Constitutionality of Legislation > General Overview
Constitutional Law > Bill of Rights > Fundamental Freedoms > Judicial & Legislative Restraints > Overbreadth & Vagueness
Criminal Law & Procedure > Trials > Burdens of Proof > General Overview
HN13Go to the description of this Headnote. This Hawaii Supreme Court has consistently held that every enactment of the legislature is presumptively constitutional, and a party challenging the statute has the burden of showing unconstitutionality beyond a reasonable doubt. The infraction should be plain, clear, manifest, and unmistakable.


Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Religion > Free Exercise of Religion
HN14Go to the description of this Headnote. In order to find an unconstitutional infringement on appellants' religious practices, it is necessary to examine whether or not the activity interfered with by the state was motivated by and rooted in a legitimate and sincerely held religious belief, whether or not the parties' free exercise of religion had been burdened by the regulation, the extent or impact of the regulation on the parties' religious practices, and whether or not the state had a compelling interest in the regulation which justified such a burden. Moreover, the United States Supreme Court has long recognized a distinction between the freedom of individual belief, which is absolute, and the freedom of individual conduct, which is not absolute. As a preliminary matter, it is necessary in a free exercise case for one to show the coercive effect of the law as it operates against him in the practice of his religion. Where appellants assert an infringement on their religious practices, in order to demonstrate the coercive effect of the government action, the appellants must show a substantial burden on religious interests.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Criminal Law & Procedure > Appeals > Procedures > Briefs
Criminal Law & Procedure > Appeals > Procedures > Records on Appeal
HN15Go to the description of this Headnote. The appellant bears the burden to show error by reference to matters in the record, and the appellate court is not obligated to sift through the voluminous record to verify an appellant's inadequately documented contentions.


Criminal Law & Procedure > Defenses > General Overview
Criminal Law & Procedure > Appeals > Procedures > Briefs
Criminal Law & Procedure > Appeals > Procedures > Records on Appeal
HN16Go to the description of this Headnote. Haw. R. App. P. 28(b)(4) provides that each point of error state the alleged error committed by the court; where in the record the alleged error occurred; and where in the record the alleged error was objected to or the manner in which the alleged error was brought to the attention of the court.


Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom
Constitutional Law > Bill of Rights > Fundamental Freedoms > Judicial & Legislative Restraints > Overbreadth & Vagueness
Governments > Legislation > Overbreadth
HN17Go to the description of this Headnote. A defendant who raises an overbreadth claim must establish that he or she is personally affected. The doctrine of overbreadth, although closely related to a vagueness claim, is distinct in that while a statute may be clear and precise in its terms, it may sweep so broadly that constitutionally protected conduct is included in its proscriptions. As an element of its overbreadth analysis, one who alleges that a statute is unconstitutionally overbroad, other than a statute affecting the freedom of expression, must be directly affected by the claimed overbroad aspects. Put differently, a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may conceivably be applied unconstitutionally to others.


COUNSEL: On the briefs:

Michael A. Glenn, for defendant-appellant.

Kevin S. Hashizaki, Deputy Prosecuting Attorney, for plaintiff-appellee.

JUDGES: MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.

OPINION BY: MOON

OPINION

[**653] [*170] OPINION OF THE COURT BY MOON, C.J.

Defendant-appellant Jonathan Adler appeals from the September 10, 2002 judgment of conviction and sentence of the Circuit Court of the Third Circuit, the Honorable Greg K. Nakamura presiding, adjudicating him guilty of and sentencing him for commercial promotion of marijuana 1 in the second [*171] [**654] degree, in violation of HRS § 712-1249.5 (1)(c) (1993) 2 and prohibited acts relating to drug paraphernalia, in violation of HRS § 329-43.5(a) (1993). 3 On appeal, Adler claims that the trial court erred in denying his motion to dismiss because (1) HRS § 712-1240.1 (1993) 4 conclusively established a defense to the commercial promotion of marijuana charge and (2) the prosecution failed to present clearly exculpatory evidence to the grand jury. Adler also claims that the trial court erred in finding him [***2] guilty as charged because: (1) HRS § 712-1249.5 unconstitutionally burdened the free exercise of his religion; (2) the testimony of one of the prosecution's witnesses regarding the dangerous effects of marijuana was irrelevant and unreliable; (3) HRS § 712-1249.5 unconstitutionally infringed on his right to privacy; and (4) HRS § 329-43.5 may be applied in an unconstitutional manner. For the following reasons, we affirm the trial court's judgment of conviction and sentence.

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1 Hawai i Revised Statutes (HRS) § 712-1240 (1993) provides in pertinent part:

"Marijuana" means any part of the plant (genus) cannabis, whether growing or not, including the seeds and the resin, and every alkaloid, salt, derivative, preparation, compound, or mixture of the plant, its seeds or resin, except that, as used herein, "marijuana" does not include hashish, tetrahydrocannabinol, and any alkaloid, salt, derivative, preparation, compound, or mixture, whether natural or synthesized, of tetrahydrocannabinol.

The trial court and the parties use the terms "marijuana" and "cannabis" interchangeably throughout the proceedings. [***3] 2 HRS § 712-1249.5(1)(c) provides that HN1Go to this Headnote in the case."[a] person commits the offense of commercial promotion of marijuana in the second degree if the person knowingly . . . possesses, cultivates, or has under the person's control fifty or more marijuana plants[.]"3 HRS § 329-43.5(a) provides:

HN2Go to this Headnote in the case.It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter. Any person who violates this section is guilty of a class C felony and upon conviction may be imprisoned pursuant to section 706-660 and, if appropriate as provided in section 706-641, fined pursuant to section 706-640.

4 HRS § 712-1240.1 provides:

HN3Go to this Headnote in the case.It is a defense to prosecution for any offense defined in this part that the person who possessed or distributed the dangerous, harmful, or detrimental drug did so under authority of law as a practitioner, as an ultimate user of the drug pursuant to a lawful prescription, or as a person otherwise authorized by law.


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[***4] I. BACKGROUND

On August 26, 1998, Hawai i County Police Department officers executed a warrant to search Adler's residence. Police officers seized 82 marijuana plants ranging from one to four-and-one-half feet tall, and seven marijuana seedlings from Adler's residence. Police also seized four pipes used for smoking marijuana and thirty-four plastic pots and bags used to grow the marijuana. Based on the items seized, the prosecution filed an indictment on September 30, 1999 alleging that Adler committed one count of commercial promotion of marijuana in the second degree, in violation of HRS § 712-1249.5(1)(c), and one count of prohibited acts relating to drug paraphernalia, in violation of HRS § 329-43.5(a).

A. Motion to Dismiss

On December 21, 1999, Adler filed a motion to dismiss the charges against him, arguing that (1) HRS § 712-1240.1 provided a complete defense to the commercial promotion charge and (2) the prosecution deliberately excluded clearly exculpatory evidence from the grand jury.

After a hearing on February 7, 2000, the trial court denied Alder's motion. [***5] The trial court filed its findings of fact, conclusions of law, and order on March 7, 2000, which included the following:
FINDINGS OF FACT

. . . .

2. That on or about June 21, 1999, [Adler] hand delivered the following two documents to the Hawai i County Prosecutor's Office:

a. A document entitled "Hawaii Medical Marijuana Institute." This document contained a "Doctor's Verification Form" from Dr. Daniel Susott and a one page attachment.

[*172] [**655] b. A Document entitled "California Compassionate Use Act of 1996 Health and Safety Code Section 11362.5." This document contained a "Physician's Statement" from Dr. Tod H. Mikuriya.

3. During the grand jury proceedings of September 9, 1999, [the] Deputy Prosecuting Attorney . . . did not present the documents received by the Hawai i County Prosecutor's Office from [Adler].

4. During the grand jury proceedings of September 9, 1999, [the] Deputy Prosecuting Attorney . . . did not present evidence concerning the medicinal use of marijuana.

CONCLUSIONS OF LAW

1. HRS Sec. 712-1240.1 entitled "Defense to Promoting" is not applicable to the instant case. HRS Sec. 712-1240.1 [***6] only provides a defense to a person authorized to possess a drug under Hawai i law.

2. The California Health and Safety Code 11362.5 does not provide for nor authorize the medical prescription of marijuana.

3. Instead, the California Code provision provides a defense to a criminal charge of marijuana possession or marijuana cultivation under California law.

4. The California Code provision, therefore, provides a defense to offenses charged under California law and does not permit the medical use of marijuana in jurisdictions other than California.

5. Even if the California Code provision applied as a defense under Hawai i law, its application in a specific case is a question of fact for the finder of fact. It is not a proper subject for a motion to dismiss.

6. The documents presented to the Hawai i County Prosecutor's Office on June 21, 1999, and evidence of medicinal use of marijuana were not clearly exculpatory and therefore, did not have to be presented to the grand jury.

B. Jury Trial

After a jury trial commencing on August 21, 2001, the jury entered verdicts finding Adler guilty of commercial promotion [***7] of marijuana in the second degree and prohibited acts relating to drug paraphernalia. However, the jury was unable to reach a decision as to whether (1) "in committing the offense[s] the defendant was motivated by a legitimate and sincerely held religious belief" and (2) "defendant's act[s] in committing the offense was an integral part of his religious faith and the governmental prohibition of the act results in a virtual inhibition of defendant's religion or the practice of the faith." Based on the jury's inability to reach a unanimous decision regarding the alleged infringement on the free exercise of Adler's religion, the trial court declared a mistrial.

C. Bench Trial

On December 24, 2001, the parties stipulated to the following:

1. On or about August 26, 1998, in the County and State of Hawaii, Defendant knowingly had in his possession and was cultivating 89 cannabis plants, seven of which were seedlings;

2. Defendant also knowingly possessed 4 pipes used for smoking cannabis, and 34 various plastic pots and bags to grow the cannabis;

3. Defendant is a Reverend in the Religion of Jesus Church;

4. The Religion of Jesus Church is a legitimate [***8] religion;

5. Defendant has received a license to perform marriage ceremonies from the State of Hawai i;

6. Defendant is sincere in his religious convictions concerning the use of cannabis;

7. Defendant sincerely believes that his religion mandates the sacramental use of cannabis;

8. The question of law as to whether the State of Hawai i has a compelling interest in prohibiting Defendant's use and cultivation of cannabis which outweighs Defendant's rights [sic] to freely exercise his religion under Article I, Section Four of the Hawai i State Constitution, shall be decided at a jury-waived trial before this Honorable Court.

[*173] [**656] Adler filed a written waiver of his right to a jury trial on December 27, 2001.

A bench trial was conducted on January 24, 2002. The trial court admitted into evidence, by stipulation of the parties, all exhibits received during the prior jury trial. Tonia Canoso, a behavioral health therapist and director of substance abuse programs with the Waianae Coast Comprehensive Health Center, and Keith Kamita, administrator of the State Narcotic Enforcement Division, Department of Public Safety, testified for the prosecution.

William [***9] Wenner, M.D. and Adler testified for the defense. Adler and his counsel had the following exchange regarding the burden to the exercise of his religion:

Q. [By defense counsel] And does the State's prohibition of your possession and cultivation of cannabis serverly burden the free exercise of your religion

A. [By Adler] Yes, it does.

. . . .

Q. Yes, it does?

A. Yes, it does.

Q. How so?

A. In burdening my religion [sic] by prohibiting my use of cannabis, whether it be cultivation, the sacred practice of growing the holy herb, or use, the sacred part of our church's tradition to consume the holy herb in remembrance of Christ Jesus and our Father in heaven, and also in the possession of the sacrament for use amongst members of the church. It would basically eliminate my church as it's -- as it's in its current form today. Q. And why would your church be eliminated if it wasn't allowed to consume or cultivate cannabis?

A. We have always used of [sic] cannabis for spiritual purposes that include prayer, to getting in contact with god, and offer our requests, ideas, and sharing with god in the sanctity of our mind and verbally. We have used [***10] it for worship to extol the virtues of the plant that god has given us and how it has helped us in our daily life and opened us up to spiritual receptively [sic].

We also use it for our healing ministry to not only relieve the stress of the physical world and day-to-day life, but to open up the healing powers of faith healing that can be accomplished through the use of the holy herb.

Q. I need to understand one thing, though, [Adler], can't you have your religious beliefs and think everything you want about God and Jesus without consuming cannabis?

A. Not in this church.

Q. Okay. What would happen if the State's insistence on prohibiting you from possessing marijuana for religious purposes were allowed to stand? What would happen to the Religion of Jesus Church, East Hawai i Branch, in your opinion as the reverend?

A. My opinion is that it would cease to exist.

Q. Thank you.

The trial court ordered the parties to submit written closing arguments one month after the transcripts from the bench trial and portions of the jury trial were completed. Closing arguments were filed by Adler and the prosecution on May 28, 2002 and June 6, 2002, respectively.

[***11] The trial court filed its findings of fact, conclusions of law, and order on June 20, 2002. The trial court found, inter alia:

7. On or about August 26, 1998, Defendant was a reverend in the Religion of Jesus Church. At that time, the Religion of Jesus Church was a legitimate religion, Defendant had received a license to perform marriage ceremonies from the State of Hawaii, Defendant sincerely believed his religion convictions [sic] concerning the use of marijuana or cannabis, and Defendant sincerely believed that his religion mandated the sacramental use of marijuana or cannabis.

8. "Marijuana" is a Schedule I drug under Section 329-[1]4(d)(20) (1997) of the Hawai i Revised Statutes ("HRS").

9. Under HRS § 329-13:

[a] substance shall be placed in Schedule I if it has the highest degree of danger or probable danger according to [*174] [**657] the determination made pursuant to section 329-11

. . . . .

.

12. Therefore, the Hawai i State Legislature has determined that marijuana or cannabis has the highest degree of danger or probable danger pursuant to the criteria set forth in HRS § 329-11(a) and [***12] the State of Hawai i has a compelling state interest in prohibiting the possession of marijuana or cannabis or the cultivation or marijuana or cannabis plants.

13. In order to comply with Defendant's East Hawai i Branch of the Religion of Jesus Church protocol, it is required that a member smoke or consume marijuana "at least once a year to honor and respect Jesus," usually on August 21st, which is believed to be Jesus' birthday. [Tr., August 27, 2001, P. 62, 65.]

(Brackets in original.) Based on its findings, the trial court concluded that the prosecution had proven the elements of both commercial promotion of marijuana in the second degree and prohibited acts relating to drug paraphernalia beyond a reasonable doubt. With respect to the alleged interference with Adler's free exercise of his religion, the trial court concluded, inter alia:

5. Defendant has failed to prove by even a preponderance of the evidence that the Commercial Promotion in the Second Degree charge creates a virtual inhibition of the religion or the practice of the faith. Defendant's religion requires that at a minimum he use marijuana or cannabis once a year. Defendant has not shown by [***13] even a preponderance of the evidence that this use requires possession or cultivation of 50 or more marijuana plants.

6. Defendant has failed to prove by even a preponderance of the evidence that the regulation provided in the Prohibited Acts Related to Drug Paraphernalia creates a virtual inhibition of the religion or practice of the faith. Defendant's religion requires that at a minimum he use marijuana or cannabis once a year. Defendant has not shown by even a preponderance of the evidence that this use requires possession of more than one pipe for consumption of marijuana.

7. The State of Hawai i has a compelling state interest in enforcing the Commercial Promotion of Marijuana in the Second Degree statute and the Prohibited Acts Related to Drug Paraphernalia statutes as they relate to marijuana.

8. Defendant is to be adjudicated as guilty of the offense of Commercial Promotion of Marijuana in the Second Degree as charged in Count I of the Indictment.

9. Defendant is to be adjudicated as guilty of the offense of Prohibited Acts Related to Drug Paraphernalia as charged in Count II of the Indictment.

The trial court sentenced Adler to a five-year term [***14] of probation and assessed a $100.00 Crime Victim Compensation Fee, and Alder timely appealed.

II. STANDARDS OF REVIEW

A. Conclusions of Law

HN4Go to this Headnote in the case.A trial court's conclusions of law are reviewed de novo under the right/wrong standard. State v. Ah Loo, 94 Haw. 207, 209, 10 P.3d 728, 730, reconsideration denied, 2000 Haw. LEXIS 359 (2000).

B. Questions of Constitutional Law

HN5Go to this Headnote in the case.This court answers questions of constitutional law de novo, exercising its own independent judgment based on the facts of the case. Id.

III. DISCUSSION

A. Motion to Dismiss

Adler contends that the trial court erred in denying his motion to dismiss. Adler argues that documents he submitted in support of his motion clearly demonstrated that HRS § 712-1240.1 was applicable in the instant case and negated his guilt of the offense of commercial promotion of marijuana in the second degree.

As noted supra, HRS § 712-1240.1 provides:

It is a defense to prosecution for any offense defined in this part that the person who possessed or distributed [***15] the dangerous, harmful, or detrimental drug did so [*175] [**658] under authority of law as a practitioner, as an ultimate user of the drug pursuant to a lawful prescription, or as a person otherwise authorized by law.

(Emphasis added.) 5 Additionally, HN6Go to this Headnote in the case.when a defendant alleges that the prosecution has improperly withheld evidence from the grand jury, this court "has concluded a court should dismiss an indictment only when the prosecutor failed to present evidence that clearly would have negated guilt or presented evidence that would undermine[] the authority of the grand jury to act at all[.]" State v. Wong, 97 Haw. 512, 526, 40 P.3d 914, 928 (2002) (citations and quotation marks omitted) (brackets in original). Thus, this court must determine whether the documents presented in support of his motion to dismiss clearly established that he possessed marijuana "pursuant to a lawful prescription" or was "otherwise authorized by law" to possess the controlled substance.


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5 HRS § 712-1240.1 was subsequently amended, effective June 14, 2000, to include the following:

HN7Go to this Headnote in the case.It is an affirmative defense to prosecution for any marijuana-related offense defined in this part that the person who possessed or distributed the marijuana was authorized to possess or distribute the marijuana for medical purposes pursuant to part IX of chapter 329.

See 2000 Haw. Sess. L. Act 228 §§ 4, 9 at 600. Act 228 also states, HN8Go to this Headnote in the case."This Act shall not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date." Id. § 5 at 600. In the instant case, Adler was indicted on September 30, 1999, before the June 14, 2000 effective date of Act 228.

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[***16] 1. "pursuant to a lawful prescription"

Adler claims on appeal that a "licensed California doctor pursuant to California law prescribed Reverend Adler cannabis. Furthermore, a licensed Hawai i doctor also prescribed Rev. Adler Cannabis [sic]." Adler, however, is barred from raising this argument by the doctrine of judicial estoppel.

HN9Go to this Headnote in the case.Pursuant to the doctrine of judicial estoppel,

[a] party will not be permitted to maintain inconsistent positions or to take a position in regard to a matter which is directly contrary to, or inconsistent with, one previously assumed by him, at least where he had, or was chargeable with, full knowledge of the facts, and another will be prejudiced by his action.

Judicial estoppel "'partakes . . . of positive rules of procedure based on manifest justice and, to a greater or lesser degree, on considerations of the orderliness, regularity, and expedition of litigation.'" This doctrine prevents parties from "playing 'fast and loose' with the court or blowing 'hot and cold' during the course of litigation."

Roxas v. Marcos, 89 Haw. 91,124, 969 P.2d 1209, 1242 (1998) (citations omitted), reconsideration [***17] denied, 1999 Haw. LEXIS 95 (1999).

During the hearing on Adler's motion to dismiss, he conceded that, because "marijuana is a Schedule I drug that cannot be prescribed, there can be no prescription of marijuana. Technically that cannot happen." He explained, "That's why we used the word 'recommendation' in California, Your Honor. As I mentioned, you cannot prescribe a Schedule I substance. So what the laws have done is make it under a doctor's recommendation, then it shall be a defense, and you're allowed lawfully to possess it." Both the trial court and the prosecution were entitled to rely on the defense's concession that he could not have legal prescription of marijuana. Thus, for this court to examine whether Alder possessed the marijuana pursuant to a lawful prescription would prejudice the trial court and the prosecution because neither addressed this argument during the hearing on Adler's motion to dismiss. Accordingly, we hold that Adler is judicially estopped from raising this argument on appeal.

2. "otherwise authorized by law"

Adler contends that he was "otherwise authorized by law" to possess marijuana under HRS § 712-1240.1 [***18] . Adler argues that, based on the Full Faith and Credit Clause of the United States Constitution, the trial court was obligated to recognize his authority to possess marijuana under California Health and Safety Code § 11362.5 [*176] [**659] (1996) [hereinafter Section 11362.5].

Section 11362.5 provides:

(a) HN10Go to this Headnote in the case.This section shall be known and may be cited as the Compassionate Use Act of 1996.

(b)(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:

(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution [***19] or sanction.

(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.

(2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.

(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.

(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possess or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician .

(e) For the purposes of this section, "primary caregiver" means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.

(Emphases [***20] added.) HN11Go to this Headnote in the case.In interpreting Section 11362.5, the Supreme Court of California has held that

a grant of limited immunity from prosecution also must properly be found in section 11362.5(d), which provides that sections 11357 and 11358 "shall not apply to" qualified patients and primary caregivers (§ 11362.5(d)), particularly in view of its purpose of prohibiting "criminal prosecution [and] sanction" of such qualified patients and primary caregivers for such crimes (§ 11362.5., subd. (b)(1)(B)).

People v. Mower, 28 Cal. 4th 457, 122 Cal. Rptr. 2d 326, 49 P.3d 1067, 1076 (Cal. 2002) (quotations marks and brackets in original). HN12Go to this Headnote in the case.Both the plain language of the statute and its interpretation by the Supreme Court of California indicate that Section 11362.5 does not grant persons a right to possess marijuana. Rather, the California law grants certain qualified persons immunity from prosecution under California Health and Safety Code §§ 11357 or 11358.

In the instant case, Adler was not prosecuted under the California Health and Safety Code, and nothing in Section 11362.5 prohibits prosecution under applicable Hawai i law. Thus, Section 11362.5 did [***21] not authorize Adler to possess or cultivate fifty or more marijuana plants in violation of HRS § 712-1249.5. Therefore, the trial court did not err in concluding that (1) HRS § 712-1240.1 was inapplicable in the instant case and (2) the documents submitted in support of Adler's motion to dismiss were not clearly exculpatory. Accordingly, we hold that the trial court did not err in denying Adler's motion to dismiss.

B. Trial Proceedings

1. Alleged Infringement on Free Exercise of Religion

Adler contends that the trial court erred in ruling that the prohibition on possessing or cultivating fifty or more marijuana [*177] [**660] plants did not unconstitutionally burden the free exercise of his religion. Adler argues that the prosecution failed to demonstrate: (1) a compelling state interest; (2) "that total prohibition is the least restrictive means of achieving the State's goals," and (3) that the "free exercise of [Adler's] religion is not burdened by the State's prohibition of [marijuana]."

HN13Go to this Headnote in the case."This court has consistently held that every enactment of the legislature is presumptively constitutional, and a party [***22] challenging the statute has the burden of showing unconstitutionality beyond a reasonable doubt. The infraction should be plain, clear, manifest, and unmistakable." Korean Buddhist Dae Won Sa Temple of Hawai i v. Sullivan, 87 Haw. 217, 247-48, 953 P.2d 1315, 1345-46 (1998) (quoting State v. Gaylord, 78 Haw. 127, 137, 890 P.2d 1167, 1177 (1995)).

HN14Go to this Headnote in the case.In order to find an unconstitutional infringement on Appellants' religious practices,

it [is] necessary to examine whether or not the activity interfered with by the state was motivated by and rooted in a legitimate and sincerely held religious belief, whether or not the parties' free exercise of religion had been burdened by the regulation, the extent or impact of the regulation on the parties' religious practices, and whether or not the state had a compelling interest in the regulation which justified such a burden.

Moreover, the United States Supreme Court has "long recognized a distinction between the freedom of individual belief, which is absolute, and the freedom of individual conduct, which is not absolute."

. . . .

As a preliminary matter, "it is necessary in [***23] a free exercise case for one to show the coercive effect of the [law] as it operates against him in the practice of his religion". . . .

. . . Appellants assert an infringement on their religious practices. In order to demonstrate the coercive effect of the [government action], Appellants must show a "substantial burden" on religious interests.

Dedman v. Bd. of Land & Natural Res., 69 Haw. 255, 260-61, 740 P.2d 28, 32-33 (1987) (citations and footnotes omitted) (some brackets in original and some added), cert. denied, 485 U.S. 1020, 99 L. Ed. 2d 888, 108 S. Ct. 1573 (1988).

In the instant case, the parties stipulated that, when Adler knowingly had in his possession and was cultivating 89 marijuana plants, he "sincerely believed his religious convictions concerning the use of marijuana or cannabis, and [Adler] sincerely believed that his religion mandated the sacramental use of marijuana or cannabis." Thus, Adler was only required to demonstrate whether his free exercise of religion had been burdened by HRS § 712-1249.5, the extent or impact of the regulation on his religious practices, and whether or not the state [***24] had a compelling interest in the regulation to justify any burden on his religious practices.

With respect to the alleged burden on Adler's free exercise of religion, the trial court found:

[Adler] has failed to prove by even a preponderance of the evidence that the Commercial Promotion in the Second Degree charge creates a virtual inhibition of [Adler's] religion or the practice of [his] faith. [Adler's] religion requires that at a minimum he use marijuana or cannabis once a year. [Adler] has not shown by even a preponderance of the evidence that this use requires possession or cultivation of 50 or more marijuana plants.

Adler argues that the prosecution "presented absolutely zero evidence that Reverend Adler's free exercise of his religion is not burdened by the State's prohibition of [marijuana]," and that the "uncontroverted testimony of Reverend Adler is that his religion can not exist without the consumption of his sacred sacrament [marijuana]." However, as noted supra Adler bore the burden to refute the presumption that HRS § 712-1249.5 was constitutional. See Korean Buddhist Dae Won Sa Temple of Hawai i, 87 Haw. at 247-48, 953 P.2d at 1345-46. [***25] On appeal, Adler fails to cite any evidence in the record [*178] [**661] establishing: (1) that the trial court's finding that Adler's religion only required its members to smoke or consume marijuana at least once a year was clearly erroneous; (2) the quantity of marijuana required to be smoked or consumed by his religion; or (3) how the prohibition on possessing or cultivating 50 or more marijuana plants burdens the free exercise of his religion. Inasmuch as HN15Go to this Headnote in the case.the "appellant bears the burden to show error by reference to matters in the record," State v. Hoang, 93 Haw. 333, 334, 3 P.3d 499, 500 (2000), and "[t]his court is not obligated to sift through the voluminous record to verify an appellant's inadequately documented contentions," Lanai Co. v. Land Use Comm'n, 105 Haw. 296, 309 n.31, 97 P.3d 372, 385 n.31 (2004) (citation omitted), we hold that Adler has failed to establish that the trial court clearly erred in finding that Adler did not demonstrate that his religion required possession or cultivation of 50 or more marijuana plants.

Inasmuch as Adler falls short of establishing a substantial burden of his free exercise of religion, this court need [***26] not evaluate (1) whether the State has a compelling interest in prohibiting the possession or cultivation of 50 or more marijuana plants or (2) Adler's somewhat disingenuous argument that HRS § 712-1249.5 constitutes a total prohibition on the consumption of marijuana. See Korean Buddhist Dae Won Sa Temple of Hawai i, 87 Haw. at 249, 953 P.2d at 1347. Accordingly, we hold that the trial court did not err in concluding that Adler failed to prove that HRS § 712-1249.5 unconstitutionally burdened the free exercise of his religion.

2. The Testimony of Tonia Canoso

Adler contends that the trial court erred by failing to strike Canoso's testimony on behalf of the prosecution. Adler argues that Canoso's testimony was unreliable and irrelevant because: (1) Canoso testified that it was possible to consume marijuana without problems; (2) Canoso indicated that marijuana can be beneficial in treating or alleviating certain illnesses; (3) the majority of people counseled by Canoso abused multiple controlled substances; and (4) Canoso failed to provide any support for her testimony.

Assuming, arguendo [***27] , that the trial court erred in admitting Canoso's testimony, such an error would be harmless beyond a reasonable doubt. The stipulation entered by the parties established (1) all of the elements of the offenses charged and (2) that the only issue for the trial court was "whether the State of Hawai i has a compelling interest in prohibiting [Adler's] use and cultivation of cannabis which outweighs [Adler's] rights [sic] to freely exercise his religion under Article I, Section Four of the Hawai i State Constitution." Canoso's testimony focused on her experience with marijuana abusers and was intended to prove that the State had a compelling interest in prohibiting the possession and cultivation of fifty or more marijuana plants. However, inasmuch as Adler failed to demonstrate that HRS § 712-1249.5 unduly burdened the free exercise of his religion, this court need not consider whether the offense of commercial promotion of marijuana is supported by a compelling state interest. Korean Buddhist Dae Won Sa Temple of Hawai i, 87 Haw. at 249, 953 P.2d at 1347. Therefore, we hold that the admission of Canoso's testimony did not constitute [***28] reversible error.

3. Alleged Violation of Right to Privacy

In the argument section of his brief, Adler asserts that HRS § 712-1249.5 infringes upon his right to privacy. Initially, Adler fails to raise this point in his statement of points of error, in violation of Hawai i Rules of Appellate Procedure (HRAP) Rule 28(b)(4) (2000) (which provides, inter alia, that HN16Go to this Headnote in the case.each point of error state "the alleged error committed by the court . . .; [] where in the record the alleged error occurred; and [] where in the record the alleged error was objected to or the manner in which the alleged error was brought to the attention of the court . . . ."). Thus, this court may disregard this argument on appeal. Additionally, Adler fails to indicate where he raised before the trial court the alleged unconstitutional infringement on his right to privacy. Moreover, during the hearing on the prosecution's motion to preclude the defense from raising [*179] [**662] undisclosed evidence or defenses at trial, Adler's counsel represented to the trial court:

I believe I've spoken with [the prosecutor's office] prior to the Court's coming in today, and they do understand [***29] that they've received our religious defense. And it was laid out in the cite of the case of [State v. ]Blake, [5 Haw. App. 411, 695 P.2d 336 (1985),] and that is our only defense.

So we have no problem being precluded from raising undisclosed defenses as long as the Court understands we do plan on using the, um, infringement on his religious practices defense.

Based on the foregoing, Adler has waived this argument.

4. Alleged Overbreadth of HRS § 329-43.5Adler contends that HRS § 329-43.5 is unconstitutionally overbroad because it "allows the State of Hawai i to bring felony charges for possessing misdemeanor quantities of cannabis by charging a class C felony for the container that the cannabis is held or grown in."

With respect to claims of overbreadth,

this court . . . explained that HN17Go to this Headnote in the case.a defendant who raises an overbreadth claim must establish that he or she is personally affected:

"The doctrine of overbreadth, although closely related to a vagueness claim, is distinct in that while a statute may be clear and precise in its terms, it may sweep so broadly that [***30] constitutionally protected conduct is included in its proscriptions." As an element of its overbreadth analysis, this court has consistently applied the principle that one who alleges that a statute is unconstitutionally overbroad, other than a statute affecting the freedom of expression, must be directly affected by the claimed overbroad aspects. Put differently, a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may conceivably be applied unconstitutionally to others.

State v. Bui, 104 Haw. 462, 465, 92 P.3d 471, 474 (2004) (quoting State v. Kane, 87 Haw. 71, 951 P.2d 934 (1998)) (emphasis and internal citations omitted).

Assuming, arguendo, that the situation articulated by Adler states a prima facie claim of overbreadth, in the instant case, Adler did not merely possess a misdemeanor quantity of marijuana. By his own admission, Adler possessed or cultivated a quantity of marijuana punishable as a class B felony. Thus, Adler was not directly affected by the aspects of HRS § 329-43.5 that he claims are overbroad. Therefore, Adler lacks [***31] standing to assert this claim.

IV. CONCLUSION

Based on the foregoing, we affirm the judgment of conviction and sentence of the third circuit court.

January 20, 2009, Decided

NOTICE: SUMMARY DISPOSITIONAL ORDERS OF THIS COURT DO NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED. SEE HAWAII RULES OF APPELLATE PROCEDURE FOR GUIDELINES RESTRICTING PUBLICATION AND CITATION OF SUMMARY DISPOSITIONAL ORDERS.

SUBSEQUENT HISTORY: Reported at State v. Vincent, 119 Haw. 467, 198 P.3d 730, 2009 Haw. App. LEXIS 265 (Haw. Ct. App., 2009)

PRIOR HISTORY: [*1]
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT. Cr. No. 04-1-433.

DISPOSITION: Affirmed.


CASE SUMMARY

PROCEDURAL POSTURE: Defendant appealed a judgment by the Circuit Court of the Third Circuit (Hawai'i) that convicted and sentenced him for, inter alia, first-degree commercial promotion of marijuana, a violation of Haw. Rev. Stat. § 712-1249.4(1) (1993); defendant claimed that a probation condition prohibiting him from using marijuana interfered with the physician-patient relationship by denying him a legitimately prescribed course of treatment.

OVERVIEW: The circuit court received into evidence, over the State's hearsay objection, a letter from defendant's physician stating that defendant qualified for a medical marijuana certificate. The appellate court found, inter alia, that the letter did not strictly comply with the specific requirements of Haw. Rev. Stat. § 329-122(a) (Supp. 2007) because the physician did not certify in writing that, in his professional opinion, the potential benefits of defendant's medical use of marijuana would likely outweigh the health risks for him. Instead, the physician stated that defendant preferred to minimize his use of narcotic pain medications and preferred to use medical marijuana, which was his legal right. In addition, defendant cultivated and possessed more than the minimum amount of marijuana allowed by Haw. Rev. Stat. §§ 329-121, 329-122(a)(3). Therefore, the evidence belied defendant's argument that the marijuana cultivated and possessed by him was for personal and medical use by him and his wife. Accordingly, defendant's conviction under Haw. Rev. Stat. § 712-1249.4(1) (1993) and the probation condition were proper.

OUTCOME: The judgment was affirmed.


CORE TERMS: marijuana, qualifying, patient, debilitating, pain, medical condition, marijuana plants, severe, substance-abuse, probation, mature, plant, knee, adequate supply, sentencing, chronic, height, professional opinion, potential benefits, health risks, legal right, medical-marijuana, bilaterally, medications, promotion, diagnosed, possessed, outweigh, syndrome, immature

LexisNexis® Headnotes Hide Headnotes


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Healthcare Law > Treatment > General Overview
HN1Go to the description of this Headnote. Under the medical-marijuana statute, a qualifying patient, defined in Haw. Rev. Stat. § 329-121 (Supp. 2007) as a person who has been diagnosed by a physician as having a debilitating medical condition, is permitted to keep an adequate supply of marijuana for personal consumption under certain conditions.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Healthcare Law > Treatment > General Overview
HN2Go to the description of this Headnote. See Haw. Rev. Stat. § 329-122(a) (Supp. 2007).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Healthcare Law > Treatment > General Overview
HN3Go to the description of this Headnote. Unless the requirements in Haw. Rev. Stat. § 329-122(a) (Supp. 2007) are met, a qualifying patient is not permitted to use marijuana for medical purposes.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Healthcare Law > Treatment > General Overview
HN4Go to the description of this Headnote. See Haw. Rev. Stat. § 329-121 (Supp. 2007).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Criminal Law & Procedure > Sentencing > Alternatives > Probation > Conditions
Healthcare Law > Treatment > General Overview
HN5Go to the description of this Headnote. Although the medical-use-of-marijuana law, codified at Haw. Rev. Stat. ch. 329, pt. IX, allows a qualifying patient to assert the medical use of marijuana as an affirmative defense to any prosecution involving marijuana use under pt. IX or Haw. Rev. Stat. ch. 712, it does not prohibit a court from imposing conditions prohibiting marijuana use on a person sentenced for a drug offense.


Criminal Law & Procedure > Sentencing > Alternatives > Probation > General Overview
HN6Go to the description of this Headnote. Probation has historically been regarded as a matter of grace or privilege and not a matter of right.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Healthcare Law > Treatment > General Overview
HN7Go to the description of this Headnote. Under Haw. Rev. Stat. §§ 329-122(a)(3) and 329-121, a person who qualifies to use marijuana for medical purposes is not allowed to have more than three mature plants, four immature plants, and one ounce of usable marijuana per each mature plant.


COUNSEL: On the briefs:

Phyllis J. Hironaka, Deputy Public Defender, State of Hawai'i, for Defendant-Appellant.

Jason M. Skier, Deputy Prosecuting Attorney, County of Hawai'i, for Plaintiff-Appellee.

JUDGES: By: Watanabe, Presiding J., Fujise, and Leonard, JJ.

OPINION
SUMMARY DISPOSITION ORDER

Defendant-Appellant Mallory D. Vincent (Vincent) appeals from the judgment entered by the Circuit Court of the Third Circuit 1 (circuit court) on April 27, 2005, convicting and sentencing him for: (1) commercial promotion of marijuana in the first degree, a violation of Hawaii Revised Statutes (HRS) § 712-1249.4(1) (1993); and (2) acquiring a firearm without a permit, a violation of HRS § 134-2(a) (Supp. 2003). In sentencing Vincent to serve concurrent terms of probation of ten years and one year, the circuit court imposed various conditions, including special conditions prohibiting Vincent from possessing marijuana, being in any vicinity where marijuana is being used, and requiring Vincent to undergo substance-abuse assessment, substance-abuse treatment (if required), and periodic urinalysis (special conditions).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
1 The Honorable Greg K. Nakamura [*2] presided.

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On appeal, Vincent contends that the circuit court abused its discretion in imposing the special conditions because: (1) he was legally authorized to possess marijuana for medical use; (2) he obtained a substance-abuse assessment prior to sentencing that showed he did not have a substance-abuse problem requiring treatment; (3) the evidence presented to the circuit court showed that his cultivation and possession of marijuana were not for commercial purposes; and (4) the circuit court wrongly concluded that his medical-marijuana usage would result in his commission of the same or similar crime. Vincent also argues that in imposing the probation condition that prohibited him from using medical marijuana, the circuit court applied the wrong "no reasonable alternative method of treatment" standard and unreasonably interfered with the physician-patient relationship by denying him his physician's legitimately prescribed course of treatment.

We affirm.

A.

HN1Go to this Headnote in the case.Under the medical-marijuana statute, a "qualifying patient[,]" defined in HRS § 329-121 (Supp. 2007) as "a person who has been diagnosed by a physician as having a debilitating medical condition[,]" 2 is permitted to keep an "adequate [*3] supply" 3 of marijuana for personal consumption under certain conditions. HRS § 329-122(a) (Supp. 2007) specifically states:

HN2Go to this Headnote in the case.Medical use of marijuana; conditions of use. (a) Notwithstanding any law to the contrary, the medical use of marijuana by a qualifying patient shall be permitted only if:

(1) The qualifying patient has been diagnosed by a physician as having a debilitating medical condition;

(2) The qualifying patient's physician has certified in writing that, in the physician's professional opinion, the potential benefits of the medical use of marijuana would likely outweigh the health risks for the particular qualifying patient; and

(3) The amount of marijuana does not exceed an adequate supply.

(Emphases added.) Therefore, HN3Go to this Headnote in the case.unless the foregoing requirements are met, a qualifying patient is not permitted to use marijuana for medical purposes.


- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
2 Pursuant to HRS § 329-121, "[d]ebilitating medical condition" means:

(1) HN4Go to this Headnote in the case.Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or the treatment of these conditions;

(2) A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following:

(A) Cachexia [*4] or wasting syndrome;

(B) Severe pain;

(C) Severe nausea;

(D) Seizures, including those characteristic of epilepsy; or

(E) Severe and persistent muscle spasms, including those characteristic of multiple sclerosis or Crohn's disease; or

(3) Any other medical condition approved by the department of health pursuant to administrative rules in response to a request from a physician or potentially qualifying patient.

3 "Adequate supply" is defined in HRS § 329-121 as

an amount of marijuana jointly possessed between the qualifying patient and the primary caregiver that is not more than is reasonably necessary to assure the uninterrupted availability of marijuana for the purpose of alleviating the symptoms or effects of a qualifying patient's debilitating medical condition; provided that an "adequate supply" shall not exceed three mature marijuana plants, four immature marijuana plants, and one ounce of usable marijuana per each mature plant.


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At a [*5] hearing held on May 11, 2005 regarding the special-probation condition prohibiting Vincent's use of medical marijuana, the circuit court received into evidence, over the State's hearsay objection, a letter from Dr. James Berg (Dr. Berg), which stated as follows:

I evaluated [Vincent] on December 22, 2004. At that time, I determined that he qualified for his medical marijuana certificate. [Vincent] has had surgery on both of his knees in the past, and remains with chronic, severe debilitating knee pain bilaterally. He also has debilitating low back and hip pain. He prefers to minimize his use of narcotic pain medications and prefers to use medical marijuana, which is his legal right by the State of Hawaii. His current medical marijuana certificate is issued from January, 2005 through January 31, 2006.

(Emphasis added.) Vincent's counsel, after making an offer of proof that Vincent was self-employed and had no medical insurance or drug coverage, argued that the circuit court was not authorized to prohibit Vincent's medical use of marijuana.

The letter from Dr. Berg that Vincent relies on for permission to use medical marijuana does not strictly comply with the specific requirements of HRS § 329-122(a). [*6] Although Dr. Berg states in the letter that Vincent had knee surgery "and remains with chronic, severe debilitating knee pain bilaterally" and "also has debilitating low back and hip pain[,]" Dr. Berg did not certify in writing that in his professional opinion, "the potential benefits of the medical use of marijuana [by Vincent] would likely outweigh the health risks for [Vincent.]" Instead, Dr. Berg stated that Vincent "prefers to minimize his use of narcotic pain medications and prefers to use medical marijuana, which is his legal right by the State of Hawaii." Therefore, Vincent did not meet the statutory conditions for medical use of marijuana and we need not decide whether the circuit court abused its discretion in imposing the special conditions of probation that Vincent complains of on appeal.

B.

We observe, moreover, that HN5Go to this Headnote in the case.although the medical-use-of-marijuana law, codified at HRS chapter 329, part IX, allows a qualifying patient to "assert the medical use of marijuana as an affirmative defense to any prosecution involving marijuana use under [part IX of HRS chapter 329] or [HRS] chapter 712," 4 it does not prohibit a court from imposing conditions prohibiting marijuana use on [*7] a person sentenced for a drug offense. Additionally, HN6Go to this Headnote in the case.probation has historically been regarded as "a matter of grace or privilege and not a matter of right." State v. Bernades, 71 Haw. 485, 489, 795 P.2d 842, 844 (1990).

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4 HRS chapter 712 describes penal offenses against public health and morals, including offenses related to prostitution, obscenity, gambling, drugs and intoxicating compounds, and nuisance.

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C.

Vincent argues that the special conditions imposed on him by the circuit court were unreasonable because the evidence showed that the marijuana cultivated and possessed by him was for personal and medical use by him and his wife, Peggy G. Nielsen, and not for commercial purposes. The record belies Vincent's argument.

Vincent pleaded guilty to and was convicted on Count I for commercial promotion of marijuana in the first degree. In its "Amended Findings of Fact, Conclusions of Law Regarding the Imposition of the Condition of Prohibition Against the Use of Marijuana" entered on May 13, 2005, the circuit court found that Count I arose out of the seizure from Vincent's residence of 329 marijuana plants, six inches in height; 54 marijuana plants, one inch in height; 117 marijuana cuttings [*8] with rooting systems; 20 marijuana plants, two to three feet in height; and 4.06 pounds of dried processed marijuana. Vincent has not challenged the circuit court's finding on appeal, and HN7Go to this Headnote in the case.under HRS §§ 329-122(a)(3) and 329-121, a person who qualifies to use marijuana for medical purposes is not allowed to have more than "three mature plants, four immature plants, and one ounce of usable marijuana per each mature plant."

Affirmed.

what is the point, in these ridiculously LONG, cut & paste posts ?? (bet they'd be a LOT shorter, if you actually typed them out) ... do you think anyone is reading them ? , sorry, but I just gotta ask, you're wasting bandwidth, IMHO, of course :) ...

TIR,

I must say, are you bored? Cause you must have read them for some reason, correct.

Wasting bandwidth? I have never considered legal case law information a waste but, just the opposite, very informing to those less fortunate than you. I imagine your fully loaded with legal knowledge, or your a stoner whom has nothing better to do than gripe.

This is so MMJ patients can be more adapted to what reality is as they smoke away their conditions/ symptoms. And this is the legal page, not the chat line.

If you wish to retype them, be my guest. I sure hope you know what your doing though, because your not the only one.