An attorney said he will challenge a Butte County judge's order Tuesday barring a drug offender with heart disease from continuing to use medical marijuana while he is on probation, absent approval by a cardiologist.
Arthur Lee Jenkins, 48, of Concow contends the court ban conflicts with the voter's approval in 1996 allowing medical marijuana with a doctor's recommendation, which Jenkins possesses.
But the prosecutor points out the Concow man was convicted with nearly a dozen others in a purported scam to use the medical marijuana law as a cover to sell the drug for profit.
"It doesn't matter whether it is pot or another prescription drug such as OxyContin or Vicodin, the court has the authority to prohibit its use as a condition of probation," said assistant district attorney Helen Harberts.
Jenkins had been arrested during a series of sweeps of medical marijuana gardens throughout Butte County in September 2008.
Sheriff's officers testified at a pretrial hearing in the "mega" pot cultivation case in June that they found the names of the same patients being posted, often without their consent, at several indoor and outdoor grow sites.
In agreeing to accept a "package" plea bargain resolving the case for all 11 defendants, Butte County Superior Court Judge Steven Howell notified them that if they were granted probation they would not be allowed to continue using medical marijuana.
According to court records, Jenkins was one of two who did not enter into that stipulation as a condition of his no contest plea to a felony charge of possession of marijuana for sale.
At his sentencing Tuesday, Jenkins' attorney Robert Radcliffe said the defendant and his wife had been burned out in the 2008 summer wildfires and had relocated to a home in Concow, where he was persuaded by the alleged ringleader in the case to tend a medical marijuana garden.
Radcliffe said when the site was raided, Jenkins told sheriff's officers he was growing the pot for his own medical use, and planned to sell any "excess" to co-ops, unaware that it was illegal to do so.
As were two co-defendants on Monday, Jenkins was sentenced Tuesday to 120 days in jail and was also placed on three years probation, during which time he cannot use marijuana, even with a prescription.
In making that order, the judge noted Jenkins had obtained his current medical marijuana recommendation prior to suffering a heart attack.
Howell indicated he would only consider lifting the pot ban during Jenkins' probation period with supporting documentation from the defendant's cardiologist.
Outside of court, Jenkins' attorney said he intended to file a notice of intention to appeal the sentence.
"While it ( the court order ) may be well intentioned ... I think that it should be in compliance with the law, and as I read the law, he has a doctor's recommendation and he should be allowed to use it," said Jenkins' lawyer.
Replied Harberts: "The law allows the court to exercise its discretion and here, it's clear that Mr. Jenkins' original recommendation had not considered the fact that he has a serious cardiac problem."
Jenkins, who was accompanied to court Tuesday by his wife, told a reporter the judge may not have been aware of the fact "I don't smoke the marijuana, I eat it."
Jenkins said he will ask his cardiologist to write a note to the court consenting to his continued use of medical marijuana on probation with the judge's approval.
Terry Vau Dell
November 3, 2009