Atwater driver takes on DMV, wins in medical marijuana case

MERCED -- A Merced County Superior Court judge has ordered the California Department of Motor Vehicles to pay $69,400 in attorney fees in the case of an Atwater woman whose licensed was revoked for being a medical marijuana user.

Judge Brian McCabe on Thursday ordered the DMV to pay attorney fees to Americans for Safe Access, a national medical marijuana advocacy organization. The group filed a lawsuit on behalf of Rose Johnson, a 54-year-old medical marijuana user who had her license revoked in June 2008.

Johnson's problems with the DMV began in April last year, when she tried to renew her license.

Johnson uses marijuana at night to help her sleep because she has back and neck injuries that began after she was rear-ended in 1990, according to the civil complaint.

She moved slowly because of her injuries, which caused a DMV clerk to have the department re-examine her eligibility for a license, according to court documents. As requested, she gave the department a list of medications she was using regularly.

The department held a hearing on June 2, 2008, and revoked Johnson's license after determining her nighttime use of pot meant that she couldn't safely drive a car.

Still, after the lawsuit was filed and Johnson took a driving test, the DMV reinstated her license in January.

In making his decision, McCabe determined that two administrative officers with the DMV revoked Johnson's license, even though an internal 2001 policy stated that medical marijuana is "to be treated by the DMV like any other prescription drug," according to court documents.

In February, the DMV also made a formal policy, notifying the public that the agency will treat medical marijuana like any other prescription drug.

Inaccurate knowledge of law

In his decision, McCabe stated that Johnson's license was revoked by two administrative officers because of her medical marijuana use: "The record is clear that both administrative officers were operating under the inaccurate and mistaken belief that medical marijuana use was illegal."

McCabe also determined that Johnson was "the catalyst in effectuating change in both the DMV's formal, public policy on the subject and the agency's adherence to the policy."

Joseph Elford, attorney for Americans for Safe Access, said the ramifications of the court's decision extend far beyond Johnson's case. "We had had other reports of medical marijuana patients losing their driving licenses simply for being patients," Elford said. "We're very glad that we could force the DMV to change its policy so that it doesn't happen to other medical marijuana patients in the future."

Tamara Morgan, the attorney who appeared on behalf of the DMV in the case, was not available for comment Tuesday. "We are reviewing the opinion and considering our options," said Christine Gasparac, spokeswoman for the Office of the Attorney General.

California voters approved Proposition 215 in 1996, which exempts patients and defined caregivers who possess or cultivate marijuana for medical treatment recommended by a physician from criminal laws that otherwise prohibit possession or cultivation of marijuana.

The law remains controversial because medical marijuana remains illegal under federal law.

Elford said federal law had no bearing on his client's case. "The California DMV is governed by state law, so that was not even an issue," he said. "If they do appeal it, we'll get attorneys fees for having to fight that appeal."

Advocates with Americans for Safe Access estimated the DMV suspended licenses of medical marijuana patients in at least eight California counties.