Beaverhead bust brouhaha 

A patient’s medical marijuana raises big questions

Scott Day has a calm, firm handshake and an affable presence, one that might make you think he’s got no problems. Think again.

The 34-year-old suffers from a rare degenerative disease that has stunted his growth and caused unbearable recurring pain. His body is mismatched, with an adult-sized head and hands on a five-foot frame. He has thick, dark eyebrows that arch above his glasses, a dark ponytail with buzzed sidewalls, and a half-smile that lingers when he’s speaking, which he does haltingly. He pauses for breaths between sentences by pressing his finger on a tracheostomy tube in his throat.

On a recent day, in the comfortable home of a close Missoula friend, he’s surrounded by houseplants, hanging vines, shelved books, couches—and a coterie of supporters, including attorney Colin Stephens, local medical marijuana advocate Angela Goodhope, his wife, Summer Day, and Tom Daubert, founder of Patients and Families United, a Montana group that advocates for patients in chronic pain. Considering his circumstances, Day needs the support.

Five weeks ago, federal agents and local police raided Day’s Dillon area residence, seizing an estimated 96 marijuana plants—and turning his life upside-down. Beaverhead County Sheriff Jay Hansen says he eventually intends to prosecute. In the meantime, Day has not been arrested or charged with a crime, raising ethical, medical, and law enforcement issues that make this one of the thorniest pot busts of recent times.

“I clearly am in need,” Day told a gathering at an American Civil Liberties Union (ACLU) conference in Missoula last week. “I was born with a genetic, degenerative disease that slows down my body and eventually causes system failure. My body is constantly being attacked.”

Day suffers from a debilitating disease known as mucopolysaccharide, a genetic disorder that disrupts the metabolism and the connective tissue in the body, stunts growth, and causes a variety of other ailments. Many patients with the disease don’t live past the age of 12. Day’s daily reality includes severe pain that he says becomes unbearable without high-powered pain relievers, including marijuana.

The physical cost of his disease is extreme. The legal cost might be, too.

On Friday, February 1, agents from the Southwest Montana Drug Task Force searched Day’s mobile home north of Dillon.

“They said they had a warrant,” Day recounts. But it wasn’t the right type of warrant, he says.

As Day tells it, two officials identifying themselves as members of the task force knocked on his door and asked if they could search his house. He says the officers entered his home and showed a document permitting airborne surveillance over his property—but not inside his home. Such flyovers are typically used to detect heat from grow lights used to cultivate marijuana indoors.

“They read me their first warrant, which was to fly over with [infra red] heat-sensing equipment,” he says.

Day and Summer give only limited comments about the bust. What they will say, though, is that officers stayed in their home for two-to-three hours, while other agents at the home—some federal, some local—waited to obtain a proper search warrant for the premises. Later, when they’d received the document, between six and ten law enforcement agents raided the home.

Day concedes that he raised the marijuana and that, at the time of his arrest, he didn’t have a state license to do so. But smoking pot, he says, is the only effective cure for the prolonged pain, nausea, and depression his disease causes.

To describe his predicament, Day took his case to the public last week. Flanked by three other medical marijuana patients, attorney Stephens, Daubert, and his wife, he told his story to some 80 people at the ACLU’s annual membership conference.

Dr. Randale Sechrest, director of the St. Patrick’s Hospital Spine and Pain Center, kicked off the panel event with a talk titled “How the drug war affects doctors, patients, and you.”

“I don’t consider myself a soldier in the drug war,” Sechrest said. “But everyone understands our healthcare system is in an incredible crisis.”

Medical marijuana use has been legal in Montana since 2004, when 62 percent of state voters approved it, making the state one of 11 nationwide with similar laws on the books. But marijuana use is still outlawed by the federal government, leaving medical users everywhere caught in the crossfire. On the one hand, they’re within the law; on the other, they’re criminals.

Against this backdrop, Sechrest says patients deal with chronic pain that would drive many to suicide—and has. Too many terminally ill patients cannot find adequate relief with traditional pharmaceutical products, he says, so they seek alternatives like marijuana, tempting an unknown fate with law enforcement.

As Day and the others take the stage, cameras flash and two overhead spotlights illuminate the panel. Day walks slowly to the table at the front of the room, looks up and squints, then smiles as he sits down. Aside from this ACLU appearance, Day has been elusive over the past two weeks, talking only briefly to reporters, and always surrounded by his wife, Daubert, Stephens, and Goodhope. His statements are well prepared, concise, and frequently guided by someone in the group.

What he and the other patients describe are physical discomforts few can imagine. Their stories sound like tales from an internment camp. They talk about sleep deprivation, depression, acute anxiety, debilitating migraines spanning days on end, uncontrollable muscle spasms, vomiting, and weight loss. They share a dependence on double-digit daily pill regimens and suffer the stress of soaring treatment costs.

People with degenerative genetic diseases can also suffer a number of debilitating side effects from the medications they take.

“This is where I run into a problem. I needed to treat multiple symptoms,” Day says. The alternatives don’t work, he adds.

Marinol, an FDA-approved synthetic substitute for marijuana, is inadequate, only treats limited symptoms, and costs too much, according to Day, Daubert, and the other patients. Marijuana is the only thing that helps, Day says.

Montana’s medical marijuana law puts a six-plant limit on plant cultivation, which doesn’t take into account the 15 different strains Day says he also needs.

“The fact that we have a six-plant policy is crazy,” Day tells the audience. “I have multiple symptoms, multiple problems, and cannabis has been treating these problems for a dozen years.”

All four patients agree that marijuana is hands-down the best treatment for their pain. But “doctors are afraid to give signatures or do anything to risk their necks,” Day says. He adds that his last doctor was aware that he needed marijuana, but got cold feet when it came to providing a written recommendation and signed prescription—the documents required to get an official user’s card, which allows people to grow plants. Ironically, Day says, he finally did find a doctor willing to sign a prescription—but only after the February 1 bust.

Beaverhead County Sheriff Hansen would not comment on the circumstances surrounding the bust beyond saying that he plans to charge Day with a crime. When asked why Day was not charged or arrested on the day of the raid, Hansen says, “It’s a big case, and at the time we didn’t see the need to arrest him. When we charge him in district court, we’ll send a summons for him.”

A press release from the Sheriff’s office describes the raid as a slam-dunk for law enforcement. According to the release, the event culminated a three-month investigation, netting marijuana plants in multiple stages of growth amid a “sophisticated venting system.” Officials put the total value of the plants at $76,000 to $153,000.

Daubert describes the police actions another way. “They’ve told the press more about what might happen to him than they’ve told him. Because they’ve told him nothing,” says Daubert.

Day concedes that at the time of the bust, he did not have the written doctor’s recommendation needed to register with the department of Health and Human Services and get his card. In law enforcement’s eyes, this leaves him without a defense.

But Day and his supporters believe the state’s medical marijuana law offers a way to fight back. So long as a doctor says marijuana’s benefits outweigh its risks to a patient, the patient can cultivate the number of plants “reasonably necessary to ensure the uninterrupted availability” of his or her supply, the law states.

“I don’t feel ill faith towards the police,” as Day puts it. “I’m frustrated by their lack of knowledge and awareness about the law.”

Without formal charges against Day, it’s difficult to tell whether this case will end up going nowhere, with task force members seizing marijuana-related items but declining to arrest anyone. Such actions have taken place at least once in Missoula in the past year, with tragic results. In October 2007, Missoula patient and medical marijuana advocate Robin Prosser, a 50-year-old woman suffering from an immunosuppressive illness, committed suicide just seven months after a federal drug task force seized marijuana sent to her in the mail. No charges were filed.

What’s at stake for Day?

“My life,” he answers.
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