Mar 4, 2012 11:18 AM by Matt Stafford
LAS VEGAS (AP) - In a decision destined for appeal to the Nevada Supreme Court, a state court judge has ruled the state's medical marijuana distribution law is unconstitutional.
At the same time Friday, Clark County District Judge Donald Mosley dismissed drug trafficking charges against two men who operated a storefront pot dispensary in Las Vegas.
In his order, Mosley concluded the law frustrates the intent of a voter-approved state constitutional amendment by failing to clear the way for a patient to legally obtain marijuana, the Las Vegas Review-Journal reported.
"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," the judge wrote in his decision.
Mosley, who retired from his judgeship Friday, stressed that he isn't a medical marijuana proponent, but was sworn to uphold the state's constitution.
He threw out charges Sept. 12 against the same two men, Sin City Co-Op owners Nathan Hamilton and Leonard Schwingdorf, but prosecutors obtained new indictments against them two days later.
Prosecutors did not return a phone call seeking comment about his latest ruling.
Attorney Bob Draskovich, whose firm represents Hamilton and Schwingdorf, was not available for comment, his office said. A news conference was scheduled for Monday.
Mosley's ruling came five months after another Clark County District Court judge reached a different conclusion in a separate but similar medical marijuana criminal case.
In September, Judge Doug Smith allowed an indictment to stand against six people arrested in a police raid of a dispensary called Jolly Green Meds.
But while Smith rejected a challenge of the state's medical marijuana laws, he noted that state law fails to provide a way for patients with a doctor's prescription to legally obtain marijuana.
The state Supreme Court is expected to hear appeals and resolve the clash of legal opinions.
Draskovich has said the only way a patient now can legally possess marijuana in Nevada is to first commit a crime to obtain it. He also has accused the Legislature of failing to abide by the state constitutional amendment that led to enactment of the law.
Mosley agreed, saying the law falls short in providing a "realistic manner" in which qualified buyers and distributors of medical marijuana can operate.
Under the amendment ratified by Nevada voters in 2000, the Legislature was charged with passing a law regarding "appropriate methods" for distribution of marijuana to authorized patients.
One state law allows medical marijuana cardholders to possess, deliver or produce minute amounts of marijuana for pain relief, while other state laws make it illegal to buy or sell marijuana.
By disallowing any payment for the herb, patients must rely on the good will of others to obtain the substance, which Mosley found ludicrous.
"It is absurd to suppose that from an unspecified source 'free' marijuana will be provided to those who are lawfully empowered to receive it," he wrote.
Mosley also criticized the amount of medical marijuana allowed to be produced and possessed. The law allows someone registered to possess one ounce, three mature plants and four immature plants at one time.
"This arrangement is of course ridiculous and in effect would make impossible any commercial distribution of medical marijuana," the judge wrote.
More than a dozen defendants in several cases are facing criminal charges for distributing medical marijuana.
Authorities have closed down nearly all local dispensaries that distribute marijuana to state-registered patients, claiming the cooperatives violate state law.