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Judge dismisses pot conviction By DAN RICE, Staff Writer
A Fairbanks judge ruled the Alaska Constitution guarantees a local man the right to possess marijuana for personal use in his home. In a decision rendered last week, Superior Court Judge Richard Savell dismissed the Fairbanks man's conviction for pot possession, ruling that a 1975 Alaska Supreme Court decision legalizing personal marijuana use by an adult in their home is still the law.
Savell agreed with arguments made by an attorney for Scott A. Thomas, 42, who was charged with three counts of felony fourth-degree misconduct involving a controlled substance for allegedly growing pot plants in a Tonsina Drive residence last summer.
The case went to trial in May and the jury found Thomas guilty of one count of a misdemeanor charge of sixth-degree misconduct involving a controlled substance for possessing 2.6 ounces of marijuana.
Lawyer Bill Satterberg immediately filed a motion for Savell to dismiss the guilty verdict based on an argument that the law under which Thomas was convicted was not constitutional as determined by the controversial 1975 state Supreme Court decision made in Ravin v. State.
The decision made it legal for adults to possess marijuana in their homes for personal consumption as long as the amount of the drug didn't exceed enough to constitute "an intent to deliver."
Four ounces of marijuana or more was considered the intent to deliver threshold when the decision became part of the state's criminal code, but state law has since placed the amount at eight ounces.
The justices ruled in Ravin that possession of pot by an adult in their home was allowed as a fundamental constitutional right to privacy. However, a 1990 voter initiative changed state law to make possession of any amount of marijuana in any location illegal.
In Thomas' recent case, the defense argued that the portion of the law prohibiting possession of marijuana for personal consumption by an adult in their home is unconstitutional.
"A direct conflict in the law exists between the right to privacy guaranteed under the Alaska Constitution and the statutory prohibition ... which criminalizes the personal use of marijuana by an adult in the privacy of the home, regardless of the quantity of the prohibited substance," reads a portion of Thomas' motion to dismiss his conviction.
Savell granted the motion on June 25, writing in pen under his signature of approval that "Ravin stands."
Jim McLain, a legal clerk in Satterberg's law office who drafted the motion for dismissal, called the decision significant.
"My understanding of it is that if Ravin is still the law, then marijuana is still legal," said McLain, a former attorney.
He said Savell's decision does not necessarily set precedent, "although in reality it may be indicative of what other judges in Fairbanks do."
McLain added that he expects a more broad-scale debate to develop soon about whether Alaska's marijuana possession law is constitutional. McLain said he believes that the 1990 voter initiative that criminalized all pot use in the state is not binding, considering voters do not have the power to change the constitution through the initiative process.
In a 1998 Alaska Law Review article that McLain included in his motion, author Andrew Winters also argued that Alaskans have a constitutional right to possess marijuana in their homes.
"Ultimately, the limited actual enforcement of private marijuana possession means both Ravin and the initiative that attempted to invalidate it have a great deal of symbolic value. Ravin is a symbol that Alaska should be proud to endorse, a symbol of the value that Alaska places on personal autonomy," Winters wrote in his conclusion.
It's possible that the District Attorney's Office could appeal Savell's decision. The Distract Attorney 0assigned to the case was not in his office Thursday and unavailable for comment.