A Medford man says the courts are practicing medicine without a license by denying him access to medical marijuana for the duration of his probation.

A Medford man says the courts are practicing medicine without a license by denying him access to medical marijuana for the duration of his probation.

Joshua Brewer, 22, was convicted by a Jackson County jury in June for the unlawful manufacture and possession of marijuana. Brewer, who has a medical marijuana card, was sentenced to 60 days in jail for growing more marijuana than his card allowed. Brewer is appealing his conviction, even as he serves a three-year term of post-prison supervision.

"I am fighting my conviction, and I am fighting to use my medication," Brewer said.

Brewer is being denied use of his medical marijuana because the Jackson County Probation Office does not recognize it as a legal treatment, even though it was prescribed by doctors. If Brewer violates the terms of his parole, he could be sent to prison for two years, he said.

"I have four different doctors' notes," Brewer said. "(The probation office and the courts) are practicing medicine without a license. If you've got the doctors' notes, you've got them. I should be allowed to take my medicine."

Brewer's public defender, Michael Bertholf, said that even though Oregon allows medical marijuana, the probation department maintains marijuana is still listed as an illegal drug under federal law. Brewer's probation requires him to "violate no law," he said. "Therefore they say (Brewer) cannot use marijuana."

Brewer said he and his doctors have agreed he should use medical marijuana over prescription opiates to ease chronic pain, the result of injuries to his hand sustained in a vehicle accident.

"They had me on 1,000 milligrams of Vicodin. The next step was Oxycontin. I'm not going to take Oxycontin. No way," said Brewer. "I have three kids to take care of. I can't be a zombie."

Portland attorney Leland Berger, who assisted in drafting the Oregon Medical Marijuana Act, briefly represented Brewer in this case. Berger on Tuesday declined to speak specifically on Brewer's probation situation, but said this is a common problem for medical marijuana users who are caught up in the justice system.

Brewer's best hope may be in overturning his conviction on appeal. Berger said he does not expect any new laws to address this specific issue in the immediate future.

Several counties in Oregon set conditions for probationary release that prohibit the use of medical marijuana. The probation departments have stated they neither have the desire nor the ability to monitor medical marijuana patients who are parolees, Berger said.

"Some counties are getting around this by placing (the offender) on unsupervised probation," he said.

Calls to Brewer's probation officer were not returned.

Cases like Brewer's may be an argument that the probation rules are "a violation of the patient/physician relationship." Berger said.

These types of cases may also violate the 8th Amendment, Berger said.

"It could be construed as cruel and unusual punishment if you deny a person their necessary prescription medicine when other options such as opiates are not appropriate or effective or if the side effects are intolerable," he said.

Brewer is not taking any medication for pain relief, he said.

"Right now I'm not on nothing," Brewer said. "I'm refusing the opiates. I'm pretty much living with the pain every day."

Brewer's June 2 sentencing came after months of legal maneuvering and a protest by members of the National Organization for the Reform of Marijuana Laws.

Bertholf asked former Jackson County Circuit Judge Ray White to dismiss all charges, arguing Brewer did not violate state law and that the judge had not instructed the jury about medical marijuana laws.

Bertholf said the plant in question had been harvested just days before the raid, and about half of the plant seized was not usable marijuana.

The judge agreed to dismiss weapons and endangering charges but ruled the possession and manufacturing charges would stand, saying it would be up to the jury to determine how much of the marijuana was usable.

Brewer and two other medical marijuana cardholders were growing marijuana at their home when Brewer was arrested on Sept. 27, 2009.

A handful of NORML members stood outside the courthouse in August, protesting Brewer's conviction and promising to seek donations to appeal it.

Reach Mail Tribune reporter Sanne Specht at 541-776-4497 or e-mail sspecht@mailtribune.com.