Drug arrest could set precedent in R.I. medical marijuana law

January 25, 2010 - 11:54am

This article demonstrates the huge resources that the state is willing to spend combatting marijuana use, even when the user is approved for medical marijuana.


By Katherine Gregg

Journal State House Bureau

This is the medical marijuana application for Orlando Martino, signed by Dr. Ivan Wolfson and dated 10/15/09. It was supplied to The Journal by Martino.

PROVIDENCE — Orlando Martino has been in and out of jail a half-dozen times in the last 15 years, mostly for drug possession; once for selling illegal drugs to an undercover police officer, and another time, for resisting arrest after the police chased him and wrestled him to the ground.

His last conviction sent him to jail for most of 2008.

Facing jail time again after getting caught by the police last August with two “sandwich-sized” bags of marijuana in his car while he was on probation, he went to see a lawyer. And a doctor.

In late October, a doctor at a Providence health clinic checked off a box on Martino’s application for a “medical marijuana card” that said he needed marijuana to “mitigate the symptoms” of a chronic and debilitating medical condition.

Though he wasn’t required by law to specify the condition, the doctor identified Martino’s problem as “severe and frequent migraines.”

On Dec. 1, the Department of Health sent Martino, 36, a small white card that allows him to smoke marijuana any time he wants, without fear of further prosecution, a distinction he now shares with 1,226 other Rhode Islanders.

The card turned State of Rhode Island vs. Orlando Martino into a precedent-setting case, in which his lawyer is trying to convince prosecutors to drop the marijuana charge from last summer –– and additional probation-violation charges –– on grounds he is now a legal user of the illegal drug.

The case has focused attention on the rules of Rhode Island’s four-year-old medical marijuana program at a time when a Senate commission is exploring whether to simply decriminalize marijuana.

It has shed light on a program run by state employees who say they are barred, by state law, from questioning whether it is appropriate to give marijuana cards to people with lengthy criminal records.

It has also put the attorney general’s office in the hot seat, as it decides how to handle a case that could affect the way police and prosecutors treat drug crimes in the future if they know the defendants can go straight from the booking station to a doctor’s office to the state Department of Health to clear away drug charges.

“This is a very important case,” says Bethany Macktaz, the prosecutor handling the Martino matter, because “this is the first time we’ve seen someone who got arrested, had marijuana, and then got the card weeks or months later. That is why it is so super important for us to really sift through the medical records to determine … if he indeed has a legitimate relationship with this doctor, a long-standing relationship with this doctor and a legitimate qualifying condition.”

Her underlying concern: “I see it as a statute that could allow for a lot of abuse if you were able to get a hired-gun doctor to prescribe these prescriptions willy-nilly.”

AT THE CENTER of the case is a 36-year-old father, youth football coach and student in a computer skills program at the Lincoln Technical Institute who does not yet have a job, but says he is trying to better his life after 10 arrests in 18 years, mostly on drug charges.

According to the police narrative of his latest arrest on Aug. 13, 2009, Providence officers stopped him after seeing his white Nissan Maxima “roll through a stop sign.”

As they approached the car, they say, they saw the driver “attempting to conceal a clear plastic bag” containing a green substance that was later identified as marijuana. He was charged with possession of an illegal drug, sent to the Adult Correctional Institutions and released later the same day for the first in a series of court appearances. He remains free on $2,000 bail.

As Martino tells his story, he has suffered all of his life with migraines so severe he sometimes had to sit in the dark for two to three days. Over the years, various doctors prescribed a lot of different medicines that either didn’t work or made him sicker.

“I was basically eating to throw up … so like I told the doctor, I can’t continue to take all of these medications and be a guinea pig.”

One of the last doctors he saw linked his headaches to post-traumatic stress syndrome, stemming from the physical abuse that he says he suffered as a 9-year-old child at the hands of an Army man his mother married, who took them with him to Germany. He said he ran away, his grandmother eventually brought him home to the states to live with her, and his drug-abusing mother died in 2000 from AIDS.

But he says knowing the possible cause didn’t stop the migraines, and he didn’t actually make the connection between marijuana and relief until “a friend came by and ended up smoking a joint with me.”

Martino said he told this to the doctor he started seeing after his last release from prison in November 2008. He subsequently started seeing a new doctor at the Crossroads Health Center, Dr. Ivan Wolfson.

It is not clear when Martino first talked to a doctor about enrolling in the medical marijuana program. But at some point after his last arrest, he met Nick Horton, a policy researcher at OpenDoors, an organization formerly known as the Family Life Center, which helps released prisoners.

Martino said Horton provided him with research findings and articles to give to his doctor to make the case that marijuana can alleviate chronic pain.

Martino said Horton also “got me all of the documentation of all the doctors in Rhode Island who have prescribed medical marijuana.” “I approached Dr. Wolfson … [and said], Dr. Wolfson, I’ll be honest with you. Right now, I just got out of prison,” Martino recalled saying. “I’m a full-time student…. The last thing I need is to get picked up [again] … when the marijuana is actually alleviating my migraines.”

Martino said Wolfson “wanted to think about it…. It took him a few months to really think about it.” But he finally agreed.

Wolfson would not comment for this story, and Horton denies giving Martino the names of any doctors.

The attorney general’s office made public a Nov. 23, 2009 letter it received from Horton, in his role as an advocate for keeping people out of jail, about Martino’s case.

“There are several reasons I believe his case stands out, and justifies a sentence of straight probation,” Horton wrote. “His record contains one 1998 drug-delivery charge, but since then he has stayed away from crime.”

Of Martino’s multiple arrests since 1998, Horton wrote: “He self-medicates with marijuana and as a result has been charged with possession of small amounts five times … [but] he has now been approved by a doctor for medical marijuana and his license application is pending.”

NOT ALL DOCTORS agree that marijuana is a safe and beneficial treatment for migraines.

Dr. Elaine Jones, a neurologist and president of the medical staff at Roger Williams Medical Center, says she sees a lot of patients with migraines, is unaware of any “good trials” looking at the use of marijuana for migraines, and would hesitate to prescribe it out of concern that it could lead, as it has in studies of rats, to the constriction of blood vessels, and that could potentially lead to a stroke.

“Medical marijuana is not well proven for migraine use, so I would be uncomfortable prescribing it,” she said in a recent interview.

But Health Department Director David Gifford says the state law that created the medical marijuana program doesn’t give his professional licensing staff any discretion to question or reject an application signed by a doctor. He said doctors don’t even need to identify the disease or condition.

As the law is written, he said, all they need do is check off one of the boxes that broadly describe the qualifying conditions, such as cancer, glaucoma and AIDS. But more than two-thirds of the medical marijuana cards went to 1,046 people whose doctors checked off: “chronic or debilitating disease or condition.”

Asked if he was uncomfortable that his employees are required to automatically sign off on the use of what is still an illegal drug in Rhode Island, Gifford said, “I have yet to see any system that someone can’t find a way around it … [but] you are dealing with licensed health professionals and you need to give them latitude with patients.”

He refused to make public the number of marijuana-use cards sought by each of the 345 doctors who recommended them for the 1,227 people who had them, as of Jan. 19. When asked the largest number any one doctor had approved, his spokeswoman Annmarie Beardsworth also refused to answer, citing state law:

“Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and practitioners, are confidential and protected under the federal Health Insurance Portability and Accountability Act of 1996.”

Asked whether he had a medical marijuana card for his own use, Gifford said, “I won’t answer that,” and then said, “the important question is, do I have a medical condition that would limit my ability to do my work, and I can tell you absolutely no. I do not have a medical condition that limits my ability to do my work [and] I don’t take any drugs that compromise my ability to do my job.”

NOW THE MARTINO case is in the hands of Macktaz, deputy chief of the attorney general’s criminal division.

The outcome might seem obvious to a layman: Martino didn’t obtain a marijuana permission card until months after he was arrested, so the charge stands and he is headed back to jail as a probation violator. In fact, that was the state’s initial position, that he should go back to jail for a year.

But Macktaz says Martino’s public defender, Jeffrey Peckham, raised an argument that does not hinge on when the card was issued: that the medical marijuana law provides an “affirmative defense” to any person who has a “bona fide practitioner-patient relationship” with a doctor who determines the benefits of medical marijuana outweigh the risks.

This presents what Macktaz calls an interesting legal issue, since “it actually doesn’t say the card-holder gets this affirmative defense. It [says] ‘person.’ ”

“Could it be abused? Absolutely,” Macktaz said in a recent interview. “I hope that is not the case … [because] it could lead to an absurd result” if defendants appeared on the eve of trial “with a note from a bona fide doctor to say this man or woman has a current medical condition where he or she would benefit from using marijuana, basically suggesting it could be applied retroactively.”

Martino’s next court date is Thursday. At that point, the state will decide whether to drop the pending charges — including the alleged probation violations, or press for a hearing.

Between now and then, Macktaz said she will sift through Martino’s medical records to try to determine where he fits within the law, but “obviously when it comes to [his case], we are also going to look at it with a jaundiced eye because… .he has had a pretty lengthy criminal history as it relates to marijuana, so I really need to find out what his medical condition is, when it started, when it was diagnosed by this doctor, and I am waiting to do that.”

“That’s where my light goes off … marijuana delivery to an undercover officer in 1998…. We really need to be sure this man is who he says he is now,” she said

Martino is hopeful the marijuana card will be his ticket to a better life, allowing him to be a role model for his daughter, 8, and son, 13, who live with their mother.

He says the Department of Health has authorized a family friend to grow it for him, as she has been learning to do from an uncle who is also an authorized “caregiver.” Martino says it is “sort of like a family business.”

“At least I won’t have to go out into the streets and take the risk anymore … which will keep me safer, too, you know, because I’m not like a trouble maker. I’m not into trouble or anything like that. I’ve got two kids. I’m trying to better my situation, you know what I mean?

“The last thing I want to do is have my children visit me in jail. That’s the last thing I want to put them through,” he says. “Like I told the doctor, I am not addicted to marijuana. It just alleviates my pain.”


In the four years since the General Assembly passed a law allowing medicinal use of marijuana, the program has been growing steadily.1,227*

Approved patients966

Licensed growers

and providers 345

Doctors who have signed medical marijuana applications167

Users with cancer 28

Users with glaucoma39

Users with AIDS147

Users with Hepatitis C1,046

Users with “chronic

or debilitating” disease

or condition

*Some people have multiple conditions

KEY POINTSMedical marijuana

Patients must provide Health Department with form signed by physician authorizing medical use

Patients may possess up to 12 plants or 2.5 ounces and may have two “caregivers” to provide marijuana

Caregivers may possess up to 12 plants or 2.5 ounces per qualified patient

Up to three dispensaries may be established to provide marijuana to patients (None have been created yet)


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