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Pennsylvania's medical marijuana law undercuts criminal charges, lawyer argues

Rich Cholodofsky
| Monday, July 17, 2017, 5:12 p.m.
Marijuana plants for sale are displayed at the medical marijuana farmers market at the California Heritage Market in Los Angeles, Calif., on July 11, 2014. Medical marijuana proponents will converge at Pittsburgh's David L. Lawrence Convention Center for a two-day expo April 21-22, 2017.
Marijuana plants for sale are displayed at the medical marijuana farmers market at the California Heritage Market in Los Angeles, Calif., on July 11, 2014. Medical marijuana proponents will converge at Pittsburgh's David L. Lawrence Convention Center for a two-day expo April 21-22, 2017.

The attorney for a Monroeville man told a Westmoreland County judge on Monday that Pennsylvania's new law legalizing medical marijuana prevents his client from facing drug possession charges police filed after finding what they described as a grow operation at his former North Huntingdon home.

Defense lawyer Patrick Nightingale said three drug charges against Aaron Flowers, 38, should be dismissed because they are at odds with state law that allow for licensed growers to cultivate marijuana for medical purposes.

“There is new medical criteria for marijuana. We know the legislature says it has medical value,” Nightingale said.

Police arrested Flowers in May 2016 after finding as many as 55 marijuana plants at his home, some of which investigators first noticed were growing in pots on the porch as they came to serve a protection from abuse order filed by his then girlfriend.

Officer Matthew Benick said police initially came to the house to confiscate guns but saw and smelled the suspected marijuana plants. Flowers' girlfriend allowed police to enter the home, where additional plants were discovered, Benick testified.

Nightingale also serves as executive director of the Pennsylvania Cannabis Society and the Pittsburgh chapter of the National Organization for Reform of Marijuana Laws, or NORML. He said Flowers' case is one of several he is challenging throughout Western Pennsylvania related the state's new medical marijuana laws.

While Flowers also claims that the search of his home was invalid, Nightingale argued Monday in a hearing before Common Pleas Court Judge Meagan Bilik-DeFazio that marijuana should no longer be considered illegal in Pennsylvania as Schedule I drug, a classification that also includes cocaine and heroin.

“I would argue that the state now says there are medical uses for marijuana, and you can't have one law that says it is legal for medical use and one law that says it is not,” Nightingale said following the hearing.

The state last month awarded permits to 12 companies to operate facilities to grow marijuana for medical purposes, including one in McKeesport. Also in June, the state issued permits for 27 medical marijuana dispensaries throughout Pennsylvania, including one on East Pittsburgh Street in Greensburg.

St. Vincent College law professor Bruce Antkowiak said Nightingale's argument in the Flowers cases is not unlike similar legal arguments that bar owners made to challenge criminal charges filed for operating unlicensed slot machines after Pennsylvania lawmakers legalized casino gambling.

Antkowiak said those legal challenges of gambling charges routinely failed.

“They never flew very high or very long for people, and I think the same kind of thing will happen here (with the marijuana argument),” Antkowiak said.

Antkowiak added that although the state has authorized marijuana use for medical treatment, that does not legalize the drug and allow unlicensed cultivation.

Bilik-DeFazio said she will rule after reviewing written legal arguments to be filed this summer.

Meanwhile, Nightingale said his defense of Flowers will continue to focus on a challenge of the state's marijuana laws even if the judge rejects his argument.

“Medical marijuana is medically necessary for my client to treat diverticulitis, colitis and other gastrointestinal ailments, which are all qualifying conditions,” he said.

Rich Cholodofsky is a Tribune-Review staff writer. Reach him at 724-830-6293 or

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