Defending Nicholas Polashek, a medical-marijuana patient being prosecuted in Boulder

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A September 23 blog quoted Boulder District Attorney Stan Garnett as saying he's "committed to having the most progressive approach to medical marijuana of any DA's office in the state." Among those who commented on the item was one Nicholas Polashek, who wrote:

Then why is the Boulder County DA's office prosecuting me, a legitimate medical patient with an 11 year history of chronic pain due to congenital deformities in both of my hips? I had 3.66 ounces (I did not know the weight) on me when pulled over for a dirty license plate. I had cookies proving I was eating my medication and I had a large quantity because of my high dosage. Even though the DA's office has all of this information they are still prosecuting me for a felony hoping I am too impoverished to mount an adequate defense, even attempting to force me to trial without proper representation at my last court date. This is in direct contradiction to the statements by Stan Garnett in this article.

For the rest of the story, we turn to Boulder attorney Jeffrey Gard, who's defending Polashek pro bono and is hopeful that a trial can be avoided.

"Nicholas is charged with felony possession of a controlled substance, because the medical marijuana he purchased was hashish," Gard notes. "He went through two or three court appearances before retaining me -- but I know that he presented his medical-marijuana card to them and asked that the case be dismissed because he was lawfully in possession of medical marijuana and had his card at the time."

The reason Polashek had such a large amount of hashish was become "he didn't want to smoke it -- he was making edibles," Gard goes on. "He had slightly over the statutory limit, because consuming it in edibles is known to use a bit more. But the medical-marijuana amendment provides for patients to make decisions to use more medical marijuana if they need to for their condition."

Polashek's ailment, according to Gard, is "hip dysplasia, a congenital condition that's going to require multiple hip surgeries and, eventually, hip replacement. Nicholas walks with a cane, and both his mother and his sister have the condition. And his orthopedist had really run out of options for treating his pain, which is why medical marijuana was recommended to him. And it's really helped his condition. He's able to function and work and continue living."

Gard agreed to represent Polashek without charge in part because "Nicholas is a young man, and I don't want to see him painted with the broad brush of fraud" -- a reference to state Senator Chris Romer's suggestion that many people under age 25 who've obtained medical-marijuana licenses have exaggerated maladies so they can legally score weed.

"I understand that Senator Romer is looking into the under-25 situation," Gard says, "but I think this has become a sensationalized issue, with the return of students to CU and the increase of people on the rolls. There's the perception that the majority of the people on the list are illegitimate, and I don't think that's the case. It certainly isn't with Nicholas."

Polashek's age "isn't relevant to his case," Gard believes, "but I think it is relevant for the DA to know that this is a legitimate case. I think it will help him be more compassionate about the situation."

As this comment implies, Gard is crossing his fingers that Garnett will ultimately decide not to pursue a conviction against Polashek. He and Garnett have touched base with the intention of meeting prior to Polashek's arraignment, scheduled for December 4 -- and given Garnett's previous statements about medical marijuana, "I believe he'll back them up by dismissing the case."

Earlier this month, Polashek, who's a musician and poet, took part in an event designed to raise funds for medical-marijuana patients threatened with prosecution. Polashek isn't currently in dire need of legal assistance, but he's interested in creating what Gard calls "a legal defense fund" for individuals who aren't fortunate enough to find a lawyer willing to donate his services. By year's end, Gard notes, Polashek hopes to create "a formal organization -- a grassroots movement of people who care about this situation, and who can stage continued fundraisers to make resources available to other patients."

Turning this goal into a reality will be much easier if Garnett drops the charges against Polashek. "If he doesn't, we'll certainly be prepared to proceed to trial," Gard says, "and I think it would be quite unlikely that any jury, especially in Boulder County, would convict Nicholas of any crime whatsoever. But I hope it won't come to that."

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