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Nevada Supreme Court May Send Medical Marijuana Case back to District Court

Question of whether 'donation' constituted a sale could be decided at trial, justice says

By Cy Ryan

Mon, Sep 9, 2013 (3:02 p.m.)

A case at the Nevada Supreme Court that is riddled with questions concerning the constitutionality of Nevada's former medical marijuana law may be headed back to a Clark County District Court after justices heard arguments Monday.

Comments from the court following the arguments indicated the case may be returned to Las Vegas, where a trial will be held for Leonard Schwingdorf and Nathan Hamilton, accused of setting up a nonprofit center to supply marijuana for a donation.

After the old law was passed, police detective Richard Splinter went to the Sin City Co-Op armed with a medical marijuana card. He says he was told he would have to make a "recommended donation" to obtain the drug.

Splinter gave $110 and received an ounce of marijuana on his first of five visits to the co-op; each time, he made the suggested donation for different amounts of marijuana. There has been no evidence presented so far to suggest that if he didn't make the "donation" he would not have obtained the marijuana.

The men were charged with multiple counts of sale, trafficking and possession of a controlled substance.

The Supreme Court, which took Monday's arguments under submission, was bothered by the question of whether the suggested donation to the cooperative was actually a sale, which was prohibited by the law.

Justice James Hardesty said the defendants maintain they didn't sell the marijuana and the prosecution has the burden to prove it was a sale.

"Why not take this to trial?" Hardesty asked, adding that a jury could decide if the case entailed a donation or a sale.

Attorney Joseph Low IV, representing the two men, argued the co-op was licensed by both the city and the state. The business was inspected, and he even suggested that if the men were found guilty, the city was a co-conspirator.

Low said there was no criminal intent. And Gary Modafferi, another of the men's attorneys, posed this question: Why would the men operate an open business if they knew it was against the law?

Modafferi said the men ran a nonprofit dispensary, and he pointed to a new law passed by the 2013 Legislature that allows a system of for-profit dispensaries, which each could make up to $300,000 a month.

But Clark County Chief Deputy District Attorney Christopher Laurent argued that the constitutional amendment, approved by the voters, does not provide for a right to sell and the 2001 Legislature didn't authorize sales.

Chief Justice Kristina Pickering said the constitutional amendment authorizes having medical marijuana but asked: "You can have it, but (there's) no way to get it?"

Hardesty suggested a person would "have to get it off the street or find it in Mexico" if the sales were not allowed under the old law.

Clark County District Judge Donald Mosley had previously ruled the former law was invalid, saying it "frustrates the constitutional mandate to reasonably provide a method of lawfully obtaining medical marijuana."

This was the first oral argument on the court's fall session.

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