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Douglas County challenge to pot order dismissed

ROSEBURG — The Oregon Court of Appeals has dismissed the Douglas County Sheriff's Office challenge of an order forcing the agency to provide marijuana seized in a drug raid to three patients prescribed medical marijuana.

Three years ago, police raided the Dixonville home of Dwight Ehrensing, a designated caregiver and grower for several people who are cardholders under the Oregon Medical Marijuana Act.

They seized more than 120 pounds of processed marijuana, some of which was processed for sale. They also seized 80 pounds of marijuana butter, produced by slow cooking marijuana leaves with butter or margarine and then straining out the leafy material. The butter, which contains high levels of THC, the active ingredient in marijuana, is then used as a food spread.

The raid also yielded 45 large marijuana plants, 10 grams of hashish, psilocybin mushrooms and more than $7,000 in cash.

Ehrensing, 64, a medical marijuana cardholder himself, was charged with manufacture, delivery and possession of a controlled substance. He was accused of selling pot to others who weren't medical marijuana cardholders.

Under the law, a caregiver can have six mature plants per person and 18 immature plants and can grow for four people. The seized amount far exceeded that, authorities alleged.

Upon motion by the defendant, Douglas County Circuit Judge William Lasswell ordered then-Sheriff Chris Brown to return 8 ounces each of the marijuana to the three other patients for whom Ehrensing was growing marijuana. Brown asked for reconsideration of the order after arguing the county could be in violation of federal laws prohibiting delivery of a controlled substance.

Lasswell rejected that argument, saying he had empathy for the patients and the pain they were enduring. None of the three patients was accused of a crime.

On appeal, the county and the Oregon Department of Justice argued Lasswell erred when he ordered the sheriff to release some of the seized marijuana. Although that marijuana was presumably used up, the state argued its appeal was not moot because the county still has the rest of the seized pot that Ehrensing contended should be released.

The three-member panel of the Court of Appeals disagreed.

"Here, in light of the state's concession at oral argument that it cannot retrieve the released marijuana, any determination about the lawfulness of the trial court's order would have no practical effect on the parties," Judge Robert Wollheim wrote in the 17-page decision issued last week.

The court noted that although Ehrensing could have asked that more of the seized marijuana be distributed, no request had been made. As a result, there weren't any grounds for a ruling, the panel concluded.

"Any dispute over the marijuana still being held by the sheriff would therefore be based on future events of a hypothetical nature. As such, the issue that the state raises as to the marijuana that is still in the sheriff's possession simply is not ripe at this time," Wollheim wrote.

In a dissent, Judge Walter Edmonds said that by concluding the question was moot, the Court of Appeals effectively prevented the state from appealing.

"The majority's reasoning effectively denies the state a statutory right to appeal because it obeyed the trial court's order," Edmonds wrote.

Ehrensing is set to go to trial on the drug charges Jan. 27. A 12-member jury will hear the case in Judge Joan Seitz's courtroom. She was assigned the case after Lasswell retired earlier this year and went on senior status.

Ehrensing has filed a motion to have the charges dismissed for lack of a speedy trial. A hearing on that motion is scheduled for Dec. 29.