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August 11, 2007 - The Oregonian (OR)

Feds' Effort To Get Patient Files Called 'Scary'

Medical Marijuana - The DEA Tries To Subpoena Medical Records Of Patients, Some From Oregon, In An Investigation Of Growers

By Anne Saker, The Oregonian

Return to Drug War News: Don't Miss Archive

Advocates of medical marijuana say federal authorities have deployed a new tactic in Oregon to curb or stop state programs that permit the sick to use the weed: subpoenas demanding medical records for 17 marijuana patients.

A federal judge is considering whether to throw out the subpoenas. But people who use and grow medical marijuana say they find the mere issuance of the subpoenas disturbing.

"It's crazy. It's really scary. If they can get my records, they can get Gov. Kulongoski's, they can get yours," said Donald DuPay, a former Portland police officer and 2006 candidate for Multnomah County sheriff. DuPay says he is among the 17 people whose records were subpoenaed.

A federal grand jury in Yakima issued the subpoenas in April as part of an investigation of a handful of growers in Oregon and Washington. The subpoenas asked simply for "medical records" of the 17 patients, who are not targets of the grand jury.

James Hagerty, the assistant U.S. attorney who convened the grand jury, declined to comment, as did a Seattle spokesman for the Drug Enforcement Administration.

The grand jury served the subpoenas on the Oregon Medical Marijuana Program, the state office that issues permits to patients and their authorized growers. A second subpoena went to The Hemp and Cannabis Foundation, a private Portland clinic where doctors examine patients to determine whether their conditions would be eased by marijuana.

In addition, the DEA raided DuPay's Northeast Portland home in June and seized 135 marijuana plants that DuPay said he was growing for patients. DuPay, who hosts a local cable-access program on medical marijuana, said this week that he has not been arrested.

On Aug. 1, lawyers from the state and from the ACLU, representing the Hemp and Cannabis Foundation, went before Chief U.S. District Judge Robert H. Whaley in Yakima to argue that the subpoenas should be thrown out.

During the hearing, Hagerty acknowledged that the subpoenas were written too broadly. What the grand jury wants, he said, is not "medical records" but only current addresses and phone numbers for the 17 patients.

He told the judge that the grand jury is investigating "four or five" people for growing marijuana to sell under cover of the medical-marijuana law. The 17 people are or were patients who got medical marijuana from the people under investigation, he said.

Whaley promised to rule on the subpoenas soon.

Oregon voters enacted the state's medical-marijuana program in 1998, and 14,868 state residents hold patient cards. An additional 7,115 people are registered as caregivers, giving them state permission to grow medical marijuana. Caregivers are not permitted to sell marijuana but can accept donations to defray costs.

Besides Oregon, 11 states have medical marijuana programs, and at least two others are considering them. But federal law forbids the use or cultivation of marijuana, and for years, federal authorities have attacked California's program by raiding marijuana dispensaries and prosecuting growers.

Last month, the DEA sent letters to landlords of dispensaries in Los Angeles warning of the consequences of selling marijuana, including prison sentences.

But the Oregon subpoenas apparently represent the first time the DEA has tried to get medical records of patients, "and of course, it is very worrisome," said Bruce Mirkin, a spokesman for the Marijuana Policy Project, an advocacy group in Washington, D.C.

"People have an expectation of medical privacy, and I think they have a right to expect medical privacy," Mirkin said. "It's one thing to talk about people selling a product that is in fact not legal under federal law. We may think that's stupid. But that's in a whole different realm than obtaining people's medical records."

The Web site for the Oregon Medical Marijuana Program promises patients and caregivers that their medical records are protected under state law and the federal Health Insurance Portability and Accountability Act.

Kris Hermes, a spokesman for the advocacy group Americans for Safe Access, said there have long been tensions between the state programs and federal authorities. But Hermes said the Yakima grand jury's subpoenas suggest the DEA is not simply looking to prosecute dealers.

"It sends a message to the other states and their programs that they're vulnerable to federal interference," he said. "It doesn't take a brick to hit you over the head to know that the federal government is trying to undermine California's medical marijuana law, given all the raids and threats to landlords. This is one step further that shows the federal government is very serious about going after patients."

reach Anne Saker at 503-294-7656 or

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