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Religious Belief NOT a Defense to Marijuana Case

Posted by Dmitry Gorin | Dec 27, 2008 | 0 Comments

A California court recently ruled on religion and marijuana defense law. The Court found that aman who sold marijuana from a Hollywood facility he called a church did not have a constitutional right to sell or possess the drug.

The Courtaffirmedthe conviction on charges of selling marijuana and possessing marijuana for sale. Defendant had beenplacedprobation on condition that he serve 90 days in jail.

Defendant, dubbed The Hollywood Wizard of Weed by the magazine High Times, was arrested in November 2006 after a police raid on Temple 420 in Hollywood. Officers seized nine pounds of marijuana along with scales, surveillance cameras, pay-owe sheets, bongs, pipes, Ziploc baggies, and packaging materials.

The narcotics officer who led the raid testified that she had visited the facility twice in the previous three months in an undercover capacity. She testified thatdefendant introduced himself as the owner of Temple 420, and said that it was a church in which members could buy marijuana.

Defendant said he planned to sell marijuana from vending machines. The front lobby had a cash register, a display of water bongs and pipes, and drug paraphernalia and related clothing, the officer said, adding that on her second visit, she filled out a membership application and purchased 3.5 grams of marijuana for $60.

Defendant testified that he was an ordained Universal Life Church minister who started Temple 420 as an online ministry. He said he was a pro-marijuana activist and that he was trying to bring religion to the pot movement because there is a million people trying to legalize marijuana and a lot of them dont have God in their lives.

The defense sought to present evidence concerning the Religious Freedom Restoration Act of 1993. The statute prohibits enforcement of laws that burden the practice of religion in the absence of a compelling governmental interest, but a 1997 U.S. Supreme Court decision held the act unconstitutional to the extent it bars enforcement of state laws.

Strobel barred the defense from referring to RFRA, saying it does not provide a defense in this case and that the minimal probative value that the evidence might have was outweighed by the possibility of misleading the jury.

The court of appeal held thatthe trial judge did not abuse her discretion in excluding the RFRA evidence, as well as evidence referring to the First Amendment. The justice noted that the temples standard membership agreement, which allegedly referred to RFRA, was not introduced in evidence, and that the defense was allowed to question the lead officer about the content, although the judge said it would be too confusing to allow questioning of the officer about whether she researched the information on the form.

The justice went on to reject the claim that the state Constitution protects the right to sell marijuana for religious purposes.

The Courtdistinguished cases that permit the use of controlled substances as part of sacramental rites. None of those cases, which dealt with the use of hallucinogenic drugs during religious ceremonies, involve sale of drugs, the justice said.

Appellant presented no evidence that he was unable to practice his religious beliefs without selling marijuana or that he had to use marijuana to perform religious services, the jurist wrote. Unlike the defendants in the cited cases, he added, the ceremonial use of marijuana is not the sine qua non of appellants faith and religious beliefs.

Tagged as: drug crimes defense

About the Author

Dmitry Gorin

Find me on Google+ Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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