Pot bust exposes ‘medical’ loophole

A suspect became a caregiver despite his arrests for marijuana

A Big Island resident faces federal drug charges after allegedly taking advantage of a loophole in the state's medical marijuana law.

Medical Marijuana Law The state law regulating medical marijuana requires that: » A qualifying patient must have a registry identification certificate from the Department of Public Safety that identifies a patient authorized to engage in the medical use of marijuana, the patient's physician, primary caregiver if any, and the location of the authorized marijuana plants. » All primary caregivers must have a valid registry identification certificate from the Department of Public Safety that identifies the same information listed above. Every primary caregiver shall be responsible for only one qualifying patient at any given time. » A qualifying patient and caregiver must not jointly possess more than the "adequate supply." The law defines adequate supply to be no more than three mature plants, four immature plants and one ounce of usable marijuana per each mature plant. » Immature plants are those that have not yet flowered, with buds not readily observed by unaided visual inspection. Mature plants have buds easily seen by the naked eye.

Richard Velasco, 49, of the Big Island was able to become a certified caregiver and grower of marijuana despite having a drug conviction, federal authorities say. He also kept his caregiver certificate despite multiple arrests for growing and possessing marijuana in amounts that far exceed what is allowed under the state medical marijuana law, they say.

Currently the state law does not require background checks for people certified as medical marijuana patient caregivers, who provide the drug to patients. There are also no inspections or monitoring of the caregiver.

State and federal officials are now asking lawmakers to fill what U.S. Attorney Edward Kubo called a loophole so big, "you can drive a Mack truck through it."

Kubo and others said yesterday they want the loophole closed by requiring that certified caregivers have no drug conviction in their past, undergo a background check before certification and annual recertifications, and that there be a procedure to revoke the certification.

"There needs to be adequate procedures for background checks, monitoring, inspections and review so this law does not become a farce," Kubo said.

Velasco, a Fern Acres resident, was found guilty in May 1993 of promoting detrimental drugs and possessing drug paraphernalia.

In August 2004 he was arrested for cultivating 246 marijuana plants, but in December 2004 he applied for and was granted a caregiver certificate under the state's medical marijuana law.

In February 2005 he was arrested again for cultivating 612 marijuana plants, and in September of that year, he was arrested again when a search warrant of his home yielded 222 plants. Some of the plants were bigger than 7 feet tall, authorities said.

He was eventually convicted for marijuana cultivation last May in state court for the August 2004 and February 2005 cases, and was sentenced to 10 years' probation and one year in jail.

Now, federal authorities are prosecuting him in the September 2005 case. Last month, a federal grand jury returned an indictment charging him with marijuana cultivation and intent to distribute. He was moved into federal custody this month. Velasco is scheduled for trial on March 20.

"He was basically dealing drugs," said Keith Kamita, chief of the state Narcotics Enforcement Division. Kamita said Velasco had only one patient while he was certified in 2005.

Because of his prior convictions, Velasco faces a 10-year mandatory sentence, which could extend up to life in prison.

"The state's medical marijuana laws are no defense to the federal marijuana laws," Kubo said.

Anthony Williams, special agent in charge at the U.S. Drug Enforcement Agency, stressed that they are not going after the sick, or physicians and caregivers operating within the law.

The current law permits users and caregivers to possess three mature plants and four immature plants at any time, plus one ounce of marijuana per mature plant. Doctors certify the patient, and the patient identifies a caregiver to provide the plant.

Kubo also recommended that the state Department of Public Safety be required to perform random inspections of the caregiver's plant-growing operation.

"After all, we regulate liquor licenses by unannounced inspections and monitoring, and liquor is legal," Kubo said.

There are 249 certified caregivers in Hawaii, with 2,609 patients smoking marijuana for medical purposes, according to Kamita.

Kamita said it would be difficult to go after the patient or the doctor who certifies the caregiver, even if there is a suspicion that the three are conspiring. They can be prosecuted if any of the documents were falsified. In Velasco's case the documents were clean.

Attempts at fixing the loophole have been unsuccessful in the past, and Kamita said they intend to go back to the state Legislature this year to "plug that big hole that Mr. Velasco is wiggling through."

In 2000, Hawaii was the first state to allow the illegal drug to be used for medical purposes through a legislative act.

State Rep. John Mizuno, vice chairman of the House Health Committee, said the committee will likely consider the issue if the Public Safety Department or U.S. Attorney's Office proposes language for legislation.

Mizuno said on top of distribution concerns, there needs to be some kind of accountability to ensure patient safety, otherwise the state could be held liable.

"We have to try and ensure the safety of our kupuna and our disabled population," Mizuno said. "We would definitely support something that makes it possible to do background checks to weed out these bad apples."