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Mistrial in First Post-Prop. 215 Medical Marijuana Defense in California


September-October 1997

The prosecution of Dr. Alan Ager (Case #SCO88810), believed to be the first marijuana cultivation case in which California's new medical marijuana initiative was used as a defense, ended in mistrial. The Marin County jury deadlocked on August 20 on whether to convict the podiatrist for criminally cultivating marijuana. The case was touted as the first test of the state's new medical marijuana law (Donna Horowitz, "Vote was 10-2 for conviction of Marin podiatrist," San Franscisco Examiner, August 21, 1997, p. A4; Peter Fimrite, "Mistrial Ends First Medical Pot Case," San Franciso Chronicle, August 21, 1997, p. A21; Peter Fimrite, "Medical Pot Test Case Goes to Jury," San Francisco Chronicle, August 20, 1997, p. A22).

Dr. Ager was arrested on September 11, 1996 for allegedly growing 135 marijuana plants at his home. Although Alger was arrested two months before the passage of Proposition 215, California's medical marijuana law, he used it as a defense. Ager's lawyer, Laurence Lichter, claimed that his client smoked "constantly, from morning till night," to reduce backpain caused in a 1978 automobile accident when a motor home rolled on him. The prosecution argued that Ager was growing too much marijuana and his growing operation was too sophisticated for only his personal medical use.

The Marin County Superior Court jury voted 10 to 2 in favor of conviction, but the two jurors who voted against conviction could not be swayed. After only eight hours of deliberations, the judge declared a mistrial. Assistant District Attorney Paula Kamina plans to retry the case, "We are trying to apply the law as the people voted for it. The issue is not whether he had a medical condition. It's whether (the marijuana is) for personal use or not," said Kamina (Donna Horowitz, "Medical pot case to reutrn to court," San Francisco Examiner, September 5, 1997).

Marin County District Attorney's office - (415) 499-6450.