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Feb 5, 2013 12:28 PM by Eric Ross

SD panel kills medical defense in marijuana cases

PIERRE, S.D. (AP) - A proposal to let people charged with possessing small amounts of marijuana argue in court that they need it for medical reasons was narrowly rejected Tuesday by a South Dakota House committee torn between compassion for chronically ill people in pain and fear that it could lead to increased drug use.

The Health and Human Services Committee voted 7-6 to kill the bill, which was sponsored by two lawmakers with roots in law enforcement.

Rep. Melissa Magstadt, R-Watertown, a nurse, said the South Dakota Medical Association and the Nurses Association oppose the measure, which would allow an unregulated and untested drug to be used for medical purposes. Marijuana often leads people to use other drugs, she said.

"If you talk to drug users, nine times out of 10 they started with marijuana first," Magstadt said.

Rep. Karen Soli, D-Sioux Falls, said she supported the bill because it could help seriously ill people who need marijuana for pain and other problems.

"This is about being compassionate to our folks," Soli said.

"When I first heard of this, I thought no way. I'm not in favor of legalizing marijuana," she added. "It's quite a surprise to me I'm going to vote for this."

The bill was sponsored by Rep. Dan Kaiser, R-Aberdeen, a police officer, and Sen. Craig Tieszen, R-Rapid City, a retired police chief.

Kaiser and Tieszen told the committee in a hearing last week that the bill would not legalize marijuana or set up a system where people could get advance permission from doctors and then buy marijuana from licensed shops. They said the bill only would have allowed someone arrested for possessing 2 ounces or less of marijuana to argue in court that they need it for medical reasons.

After listening to doctors and other experts, a judge would decide whether to allow the defense.

State and local law enforcement officials opposed the bill, saying it could open the door to eventual legalization of marijuana in South Dakota.

Opponents also noted that South Dakota voters in 2006 and 2010 rejected medical marijuana ballot measures that would have given patients suffering from debilitating diseases legal access to marijuana. Prosecutors also said the bill could clog up the courts with hearings and jury trials on misdemeanor charges because many people would argue they need marijuana for medical treatment.

Rep. Steve Hickey, R-Sioux Falls, said the bill would have sent a mixed message on the Legislature's views on marijuana, and other drugs are available to help people suffering from chronic pain or other problems.

"If we say yes, we're talking out of both sides of our mouth. We don't want it to be legal, but we want it to be legal for this," Hickey said.

But Rep. Jacqueline Sly, R-Rapid City, said she would be tempted to seek marijuana if a family member was dying of cancer and needed it to manage pain. The bill would have merely given such people a defense in court, she said.

Some committee members asked whether people arrested for marijuana possession can already argue in court that they need it for medical purposes.

Emmett Reistroffer, who helped organize one of the medical marijuana ballot measures, said the South Dakota Supreme Court in 2003 rejected a medical necessity defense by a paralyzed man who argued he needed to smoke marijuana to ease chronic muscle spasms.

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