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Constitutionality of Drug Dispensaries in Nevada

In 2000 Nevada voters changed the state's constitution to allow people who need marijuana for medicinal purposes to possess seeds, grow their own plants and possess marijuana. Unfortunately, the law allows no legal way for people to buy the seeds or to purchase marijuana if they can't grow it themselves. Consequently, the law is impossible to implement since there appears to be no way to legally acquire the means to produce what is purported to be a legal substance, inviting unlawful and felonious conduct.

Last Friday, Clark County District Judge Donald Mosley said as much, declaring the state's medical marijuana law to be unconstitutional. In his ruling Judge Mosley said that the state law was "poorly contemplated or purposefully constructed to frustrate the implementation of constitutionally mandated access to the substance." In so doing, Mosley dismissed drug trafficking and other charges against two people, Leonard Schwingdorf and Nathan Hamilton, the owner-operators of Sin City Co-Op, a medical marijuana dispensary located in Las Vegas.

The co-op organizers say they accepted donations to provide members with marijuana, side stepping the issue of sale of a controlled substance. Nevertheless, prosecutors say the donation in fact constituted a sale, which violates both state and federal laws.

Sin City Co-Op offered a place where those with state-issued medical cards supposedly could legally buy marijuana for medicinal purposes, such as to ease pain related to cancer and glaucoma, among other ailments. Last year, Sin City Co-Op was one of many local dispensaries shut down by a Metro Police task force working with the Clark County District Attorney's office.

Another dispensary that suffered from the raids is Jolly Green Meds. That raid resulted in the arrest of six people who are now standing trial before Clark County District Court Judge Douglas Smith, who denied a similar motion to dismiss in his court, allowing the indictment to stand despite indicated he had difficulty reaching that decision.

The issue will soon be before the Nevada Supreme Court. However, its future seems bleak as any law allowing for the possession, sale and distribution of controlled substances must run afoul of federal law that makes such conduct a crime. Pursuant to the "Supremacy Clause" of the United States Constitution, any such law must yield to Federal Law. Stay tuned.