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The Verde Independent | Cottonwood, Arizona

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3/12/2013 10:32:00 AM
House panel gives OK to destroy seized marijuana
Mel McDonald, the former U.S. Attorney for Arizona, urges lawmakers Thursday to kill a measure that would allow police to keep and destroy marijuana they seized even if if turned out the person was allowed under state law to have the drug. McDonald said he became a believer in medical marijuana because of the needs of his stepson. (Capitol Media Services photo by Howard Fischer)
Mel McDonald, the former U.S. Attorney for Arizona, urges lawmakers Thursday to kill a measure that would allow police to keep and destroy marijuana they seized even if if turned out the person was allowed under state law to have the drug. McDonald said he became a believer in medical marijuana because of the needs of his stepson. (Capitol Media Services photo by Howard Fischer)

Howard Fischer
Capitol Media Services


PHOENIX -- Rejecting the pleas of the state's former top federal prosecutor, a House panel voted to let police destroy marijuana they have seized even if it turns out the person had a right to possess it.

Melvin McDonald, who was the U.S. Attorney for Arizona in the early 1980s, told members of the Judiciary Committee that SB 1441 is an improper end-run around the 2010 voter approval of the Arizona Medical Marijuana Act. And he called the fear by police that they will be subject to prosecution under federal law if they give back the drugs "utter nonsense.'

McDonald admitted he is more than an idle bystander.

He told lawmakers of the seizures suffered by his stepson, Bennett Black, who suffered a traumatic brain injury in a 1997 accident and eventually had to have part of his brain removed. McDonald said both the seizures and the pills designed to control them made Bennett sick and nauseous.

It was only when his wife, Cindy, began to get marijuana for their son -- illegally until the law was passed -- that he was actually able to eat and reverse the weight loss from 118 pounds to 180 pounds.

Committee members approved the measure anyway on a 5-3 party-line vote. Its fate, however, remains uncertain.

Two of the Republicans who supported the legislation said they did so to give the full House a chance to weigh in. But they expressed concern with anything they believe undermines the 2010 law.

Rep. Ethan Orr of Tucson said he fears that the legislation could be used to effectively shut down an entire medical marijuana clinic by seizing the drugs, leaving its patients without their drugs while the clinic owners sought out a new supply.

And Rep. Doris Goodale of Kingman explained how she used to be against anyone using marijuana.

"I have come to realize through personal family situations that yes, there is an applicable use of medical marijuana,' she said. Goodale also said she does not want to undermine the will of the public which created the program.

Those soft Republican votes are only part of the problem faced by the Arizona Prosecuting Attorneys Advisory Council which already has pushed the measure through the Senate.

Because the law was adopted by voters, it can be amended only with a three-fourths vote of each chamber. That means proponents have to convince 45 of the 60 House members to go along.

And Anjali Abraham with the American Civil Liberties Union said even that may not work.

She pointed out the Arizona Constitution allows legislators to tinker with voter-approved measures only when the "further the purpose' of the original law. Abraham said allowing police to keep marijuana taken from patients does not do that.

The legislation is designed to overturn a ruling last year by the state Court of Appeals.

In that case, Valerie Okun, a California medical marijuana patient, was stopped by Border Patrol just inside Arizona. The agents took her marijuana and referred the case to the Yuma County Attorney's Office for prosecution.

The case was dropped after Okun eventually produced her California medical marijuana card. Arizona law, which allows those with a doctor's recommendation and a state-issued card to obtain up to 2 1/2 ounces of marijuana every two weeks, provides similar recognition to patients from other states.

But when Okun demanded her marijuana back, the Yuma County Sheriff's Office refused, saying deputies would be violating federal laws which continue to make possession of marijuana a crime.

The appellate judges, however, said there is no danger of federal prosecution, at least in part because the deputies would be obeying a lawful court order.

That case is now on appeal to the Arizona Supreme Court. But Kim MacEachern, lobbyist for the prosecutors, said lawmakers should make clear that marijuana, once seized, cannot be returned.

McDonald told lawmakers any concern about federal prosecution is "utter nonsense.'

"The Department of Justice has more issues on their plate than to worry about a deputy sheriff turning back to a lady marijuana that should have never been seized in the first place,' he said. And he said the legislation lacks merit.

"It is nothing more than prosecutors trying to yet create another exception to allow them to do what the voters of the state of Arizona said you can't do,' McDonald said. He said those who have medical marijuana need it to live.

"My boy does not eat without first taking the marijuana,' he said.

MacEachern said the legislation still leaves patients with the option of filing a claim against the agency for the value of the drugs taken.

She also said the prosecutors' desire to destroy the drugs is not unprecedented. MacEachern said that's what happens with prescription drugs when police take it from individuals who cannot immediately prove they are entitled to possess them.



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Reader Comments

Posted: Wednesday, March 13, 2013
Article comment by: Instead of returning the marijuana, just have law enforcement pay for it.

The marijuana was weighed by the police after it was confiscated. Start using some of the seized drug money and bonuses handed out for marijuana convictions and reimburse the legal pot user at $400 an ounce. It will stop the law enforcement from taking away marijuana from a legal user and the will of the people will prevail.

Posted: Tuesday, March 12, 2013
Article comment by: james merkle

please post the names of the people that voted in favor of this ridickules law that prejudices against mmj patients, we the people that voted for mmj would like to vote them out of a job next election!

Posted: Tuesday, March 12, 2013
Article comment by: Carl Nye - Jerome

A little google research reveals that Kim MacEachern is on the staff of the Arizona Prosecuting Attorneys Advisory Council (APAAC).

From the article:

"Those soft Republican votes are only part of the problem faced by the Arizona Prosecuting Attorneys Advisory Council which already has pushed the measure through the Senate."

What is the mission of APAAC? From their website:

APAAC began as the Arizona County Attorneys' Association which was created in 1973. The Arizona Prosecuting Attorneys' Advisory Council (APAAC) was then created by the Arizona Legislature in 1977. Although APAAC provides a variety of services to prosecutors, the primary mission of APAAC is to coordinate and provide training and education to prosecutors throughout Arizona. APAAC currently serves over 819 full-time state, county and municipal prosecutors.

The Council is composed of twenty-three (23) members, including the attorney general, the fifteen elected county attorneys, five municipal prosecutors, a representative of the supreme court, and the dean of one of the state's law schools.

Funding and Operation
The Arizona Prosecuting Attorneys' Advisory Council receives no state general fund revenues, and depends on a continuing appropriation through the Criminal Justice Enhancement Fund (CJEF) as its source of funding. The Criminal Justice Enhancement Fund is derived from the surcharge on criminal and civil fines. This revenue source allows the "users" of the criminal justice system, rather than the taxpayer, to fund the necessary training and education of public prosecutors. The current legislative formula provides for APAAC to receive 3.03% of the Criminal Justice Enhancement Fund.

As noted above, the primary mission of APAAC is to provide education and training to prosecutors, although APAAC through its members, committees and staff provide a variety of other services to prosecutors that include:

* Providing legal research to prosecutors' offices on a daily basis
* Providing a clearing house of relevant national and local information for Arizona prosecutors
* Providing assistance to prosecutors' offices in the preparation of trial briefs, forms and instructions
* Preparing positions on and comments to proposed rule changes from the Arizona Supreme Court
* Conducting research of interest and value to prosecuting attorneys and their staff
* Coordinating amicus briefs to the state appellate courts on issues of statewide concern
* Maintaining liaison contact with agencies of all branches of government, including the state legislature
----------
Notably missing from the APAAC mission list is Lobbying. Would that be included under "Maintaining liaison contact" with the state legislature? The article says that APAAC has "already pushed the measure through the Senate". Ah, what webs they weave....


Posted: Tuesday, March 12, 2013
Article comment by: Carl Nye - Jerome

From the article:

"That case is now on appeal to the Arizona Supreme Court. But Kim MacEachern, lobbyist for the prosecutors, said lawmakers should make clear that marijuana, once seized, cannot be returned."

Can someone please explain why prosecutors have a lobbyist? Lobbying who? Lobbying for what? Who, specifically, is paying for the services of Kim MacEachern?




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