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New Alaska medical marijuana clinic banks on hazy enforcement policies

Jill Burke
flickr / Bob Doran

"Get legal today!" commands the newspaper advertisement, currently circulating, for a three-day medical marijuana clinic coming to Anchorage later this month. Michael Smith started the Alaska chapter of his venture, The Healing Center Medical Clinic, in early 2012. It's doing so well he says Alaska is now the only state in which he's operating.

The clinics do not provide pot to patients. Instead, they act as a broker to help would-be patients become card-carrying medical marijuana registrants under Alaska law.

Smith sees "great need" in the 49th state, where people work hard, play hard, and inevitably get hurt. "Marijuana is a great midlevel pain reliever that you can grow yourself and not be beholden to a pharmacy," he said.

The clinic screens applicants and helps them fill out their paperwork, then provides access to a doctor for evaluation. It's a way to weed out, so to speak, patients who think the marijuana clinics are merely places to "come and get high" or to eliminate patients whose medical complaints don't satisfy requirements for state registration, Smith said.

Think of Smith as a matchmaker. He provides patients with access to doctors who are friendly on medical marijuana's use as an effective medical therapy.

Alaska's Medical Marijuana Registry has exploded in size in recent years, suggesting Alaskans do see value in legitimizing their use of the plant's healing properties.
        •       In 1999, the registry had 28 names.
        •       In 2010, it had more than quadrupled in size to 130 people.
        •       By 2011, that figure had more than doubled, to 287 registrants.
        •       In July 2012, the Alaska Medical Marijuana Registry is just four patients shy of 1,000.

Since January, Smith estimates his clinics have seen at least 700 clients. Twice as many men show up as women. The average age is 55, although a few minors have made appointments, accompanied by supportive parents. Alaska's medical marijuana law allows minors to be card bearers.

But in a state that is already permissive of personal marijuana use, how much more do medical marijuana cards really insulate a user from potential prosecution?

Is your marijuana use personal or medicinal? 

The Alaska Constitution is well known for its personal privacy protections, which, under a landmark case brought by activist Irwin Ravin, extends to the use and ingestion of marijuana. Since Ravin v. Alaska was decided, it's become the legal cornerstone for upholding Alaskans' treasured privacy rights, including the right to possess and smoke small amounts of marijuana.

In 1975, the Alaska Supreme Court found that constitutionally-protected privacy rights trumped the state's home intrusion authority in pursuit of Alaskans using small amounts of marijuana. In 2006, the state passed a new law criminalizing possession of any amount of marijuana. But the courts found that law, too, violated citizen privacy rights upheld by Ravin.

At least three Alaskans busted on pot charges have had their court cases tossed based on Ravin's precedent. Those rulings basically invalidated a handful of state laws aiming to recriminalize personal use and possession of marijuana that have been passed in the years since the Ravin decision.

So is marijuana possession legal or not in Alaska? It's a debate that continues to this day.

Technically, marijuana use is forbidden without a medical marijuana license. The 2006 change in state law does make possession of any amount of marijuana illegal. Yet the same legal framework forbidding pot is also tolerant of it. There is no criminal penalty in Alaska for possession of up to an ounce in one's home. In 2010, an Anchorage police spokesman explained authorities won't arrest you for it (although they will take it away from you), further reinforcing the state's reputation (whether earned or not) as having a permissive legal attitude toward the drug.

More recently, the Anchorage Police Department was willing to draw a sharper line.

"If I come into your house and find plants I'll arrest you," APD spokesperson Lt. Dave Parker said in an interview Thursday. "Nothing is allowable unless you have a permit. If you have a medical marijuana license then you can grow up to six plants. End of story. If you don't have a medical marijuana card you are in trouble."

Sharon Marshall, an Assistant District Attorney in Alaska, confirmed that interpretation of state law. Possession of any amount of marijuana could be a low-level misdemeanor, subject to jail time and fines. But whether prosecutors would bother to make a case out of a person's small personal stash is another matter. Such decisions are made on a "case by case," basis, Marshall said. 

The Alaska Civil Liberties Union, which challenged the legality of the 2006 law, believes nothing has happened to erode the impact of the Ravin decision. The Alaska Supreme Court has thus far been unwilling to take up the ACLU challenge. And until another court case arises that tests Ravin's protections, expect legal uncertainty.

The ACLU isn't aware of anyone in Alaska who's been wrongfully prosecuted for personal possession of marijuana but remains vigilant in defense of Alaskans' privacy rights.

Questions surrounding whether and how marijuana is (or isn't) legal, though, can largely be avoided with a medical marijuana card. As long as you are a card-bearer and are in possession of no more than an ounce of marijuana -- or growing no more than three flowering plants in your home (six total are allowed -- three large plants and three immature plants) -- you're not breaking the law.

A medical marijuana card does give you more rights and protections than a private citizen without one. Card bearers can go about their daily business with marijuana tucked away in a pocket or in the glove compartment. No card? Your privacy rights end at your home's front door.

Seeing green

Smith's business model capitalizes on the enhanced rights that Alaska's medical marijuana laws extend.

"The only way you can be 100 percent legal is to have a medical marijuana card. You can have it (marijuana) and use it freely, share it with other card users. You can't sell it. But you can give it away free," said Smith, who added that he's had several patients in Fairbanks and Anchorage report that they've been able to flash their card during a police stop and promptly get on their way. "You are free and clear to go," he said.

Smith comes from a long line of medical marijuana loyalists. He's an advocate of using the plant as a reasonable alternative to opiates and other narcotic and often addictive pain killers. He personally uses it to manage nerve damage in his arms he developed after a physically demanding career as contractor. He had a brother with AIDS who was opposed to the drug and disliked using it but found it controlled his symptoms better than prescription medicines. Even his mother and son are on board, he said. His mom uses marijuana to control pain associated with a knee replacement, and his 21-year-old son uses it as an alternative to prescription medications to control the discomfort associated with severe injuries he suffered during a motorcycle crash. 

Smith's clinics advertise that anyone suffering from severe or chronic pain, arthritis, nausea, migraines, cancer and other conditions can qualify for a doctor's recommendation to use marijuana. He cautions, though, that psychological conditions like depression or anxiety don't make the cut.

About 10 percent of the people seeking cards through his clinics will be turned away, Smith said. People must be able to show that they have a diagnosed, chronic condition and that they have tried and been dissatisfied with other medically prescribed remedies, he said.

Depending on where in Alaska his clinic is held, and whether a patient comes with or without medical records, fees for appointments range from $300 to $400. With 700 clients assisted so far this year, he's roughly pulled in $250,000. How much of that revenue ends up as profit isn't known. The registration fee to sign up with the Alaska Medical Marijuana Registry is a mere $25 -- far less than a visit to Smith's clinics. But he is providing a doctor's evaluation and paperwork assistance in one stop, and views the $300-$400 fee as a reasonable cost both for convenience and long-term investment.

His rationale? Why risk having to hire a lawyer to beat a possession rap you could have avoided from the start if only you'd only had a medical marijuana card?

He's found a business niche in Alaska and says people who've looked unsuccessfully for years for a marijuana-recommending physician thank him all the time.

"This is the most rewarding job I have ever had in my life," he said.

Contact Jill Burke at jill(at)alaskadispatch.com