Dr. Note Does Not Excuse Pot: Court

"Pursuant to a prescription or order" was key to the case.

Thursday, Nov 3, 2011  |  Updated 10:00 PM PDT
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 An argument that a doctor's recommendation for medical marijuana provides a way around federal drug laws was rejected by a U.S. appeals court in San Francisco today.

The 9th U.S. Circuit Court of Appeals turned down an appeal by a Roshaja Harvey, a convicted Southern California bank robber who was found to have violated his parole by using marijuana.

Harvey was placed on supervised release after serving 10 years in prison for armed bank robbery. In January, he tested positive for marijuana and was found to have violated the terms of his release by using an illegal drug.

Harvey argued in his unsuccessful appeal that he was exempted from federal drug laws because he had a doctor's recommendation for medical use of marijuana under California's Compassionate Use Act. His argument was based on wording of the federal Controlled Substances Act, which allows exemptions for substances obtained "pursuant to a prescription or order" from a health practitioner.

But the appeals court said that wording doesn't apply to marijuana because the plant is listed as a Schedule I drug, which is defined as a substance for which there is "no currently accepted medical use in treatment."

A three-judge appellate panel upheld a decision in which U.S. District Judge Irma Gonzalez of San Diego ruled in June that the federal law prohibits doctors from prescribing marijuana.

The appeals court also agreed with a second conclusion in which Gonzalez said a doctor's recommendation does not qualify as an order. Ninth Circuit Judge Ferdinand Fernandez wrote, "Whatever else 'order' might mean under ... the Controlled Substances Act, it does not include a mere recommendation from a physician pursuant to the (California) Compassionate Use Act."

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