Metropolitan News-Enterprise


Tuesday, October 26, 2004


Page 1


Court Upholds Dismissal of Marijuana Cultivation Charge


By a MetNews Staff Writer


A preliminary hearing magistrate properly dismissed a marijuana cultivation charge based on evidence, including expert testimony, that the defendant was using the drug for personal medical purposes, the Third District Court of Appeal ruled yesterday.

In upholding the dismissal of charges against Timothy Arbacauskas of Sacramento, the court rejected the attorney generalís contention that the defendantís possession of 17 marijuana plants was sufficient to create a reasonable suspicion that he intended to sell some of the final product.

The case stems from a 2002 inspection of the defendantís premises by a narcotics detective who said he witnessed Arbacauskas spraying his plants, which were growing in the backyard. The backyard fence, the detective noted, had a sign saying the marijuana garden was authorized by Proposition 215, the medical marijuana initiative.

The detective went inside the residence, seizing a number of items, including a scale, a cell phone, and several baggies containing marijuana residue and inscribed with the symbol of an Oakland cannabis club. Arbacauskas showed the detective a document signed by a physician recommending marijuana for pain relief.†

The detective seized the plants. He testified at the preliminary hearing that each was likely to produce a pound of usable marijuana, and that in his opinionóbased on the number and health of the plants, the scale, the plastic baggies, and the cell phoneóthe defendant was cultivating the plants for sale.

The defendant testified that he used marijuana to relieve back pain he had been suffering from for several years, dating back to his work as a firefighter. He acknowledged that he had been placed on probation in 1999 for selling, giving away, or using marijuana without medical authorization.

He stopped smoking after that, he explained, but had an auto accident in 2001 and started again because the pain as worse than before. He saw multiple doctors and tried multiple prescription painkillers, but they were ineffective and he did not like the side effects, he said, leading him to obtain an authorization to use marijuana.

The magistrate found that he was entitled to the immunity of Proposition 215. The Superior Court judge and the Court of Appeal agreed.

Justice Coleman Blease cited the magistrateís findings of fact, based on the defendantís testimony and that of an expert, who cited the lack of indicia of sale, the defendantís innocent behavior when a detective appeared at his residence, Arbacauskasí written medical authorization to use marijuana, the size of his garden, which the witness said would normally yield a quantity of medical marijuana consistent with medical use, and the difficulty in predicting and calculating the yield of useable medical marijuana at the time of planting.

He wrote:

ďIn sum, the evidence showed that defendant had the requisite medical authorization and several back injuries that caused him severe pain, which was impervious to traditional pain medications.† He credibly denied cultivating marijuana to sell and his prior efforts at growing marijuana only yielded two to three ounces of marijuana per plant.† This history, in light of the difficulty of predicting and calculating the yield of useable marijuana, and the vagaries of back pain, constitute substantial evidence that defendant was cultivating marijuana for personal medical use rather than to sell it.Ē

The case is People v. Arbacauskas, C044110.


Copyright 2004, Metropolitan News Company