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Ken Driessen Legal Defense Fund

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And plea to hear stay motion 



STATE OF WISCONSIN                                                                                                                                                                                                   


                                                                                   Motion for 


                                                                              Order  809.14(2)     

                                                                                      and for

V.                                                                                 Clarification and Direction          

                                                                                   of the Court     



                                                                         Circuit Case No. 09 CF 48





     In a December 22, 2009 letter addressed to Mr. Schanker, the Clerk of Courts, Gregory Weber Assistant Attorney General, in part states, "Although the state opposes the petition, as it does not meet the standards enunciated in Wis. Stat. 809.62, it will not file a formal written response, unless ordered by the court."  Petitioner, Driessen objects to the state's notion of his petition being substandard under a statute pertaining to rules for petition to review. The Court of Appeal's decision to dismiss the appeal of this case based on lack of jurisdiction is not actually even a summary judgment. Therefore Driessen is wondering if his Petition essentially arrived in the Supreme Court as a bypass of the Appeals Court, rather then a petition for review of a negative Appeals Court decision. Whether proceeding as a bypass or review, the Appeals Court dismissal took place before an appellant's brief was due or filed. While Driessen feels his Motion for a Stay filed in the Appeals Court is adequate and does pray for the Court's decision on it at it's soonest convenience, no proper brief or petition has been filed as of this time.  Petitioner, Driessen here asks the court for clarification as to if he should file a brief adhering to that statutory format or a petition formated under 809.62(2)?  Since holidays took place between the Appeals Court, December 15th, 2009, denial of reconsideration; is the 808.10(1) time limit for filing a brief or a petition the 14th of January 2010 or could it be extended to let say January 30th or any other time period convenient to the Court and state?  


    In further reply to the Plaintiff-Respondent's letter, to help the State determine it's intensions to oppose the petition, and help the Honorable Judges understand more precisely the Petitioner's purpose, below are the issues stated in the form of questions to relate to 809.62(1r) Criteria for granting review:


 1.) The following issues would normally be appealable for review at the appellate court level but the Third District Appeals Court refused to hear the appeal claiming lack of jurisdiction:

 a.) Did Judge Eaton error and abuse his discretionary power when he allowed the state to amend the complaint to delete information related to false probable cause notion that Driessen did not possess a valid license on March 28, 2009?

 b.) Did Judge Eaton error during the evidentiary hearing when he allowed Trooper Lewis to change her account of the incident in comparison to her official written report concerning Driessen allegedly speeding, swerving completely in the oncoming lane and Deputy Knapp removing a small jar from Driessen's pants pocket?

c.) Judge Eaton refused to consider the possibility that Deputy Knapp wrote a false report in this case concerning probable cause even when Driessen's statements and written statements of a fellow law enforcement agent disagree with the Deputy's account. In this light, Driessen attempted to submit evidence from another incident where Deputy Knapp grabbed and struck a person with no authority on video and in the Deputy's report it states he warned the person at least 6 times before the deputy attacked the person when he gave no such warnings. Should Judge Eaton have dismissed the complaint considering the state does not have a credible witness?   

Since the appellate court refused to hear concerns of violation of Driessen's 4th Amendment rights by the Deputy, by writing a report suspect of false statements concerning probable cause, if the Supreme Court would refuse to hear such concerns to possibly over rule or aquit on such grounds, would a violation of Driessen's 1st Amendment right to petition the government for redress occur?  Since the Court of Appeals did not rule on the merits of this Appeal/Petition should or could the Supreme Court overturn, aquit or remand all counts due to the errors mentioned above? Are the Circuit Court decisions and the Appeals Court decision involving this case in conflict with State and Federal Court decisions concerning probable cause within the criteria necessary for review under 809.62(1r) d or e?


2.) It has come to Driessen's attention that contrary to the actions of the State respondent, the Circuit Court and the Appeals Court; through legislation, statute 59.54(25) already exists that decriminalizes marijuana in the State of Wisconsin. The writing of the ordinance statute itself is vague and can be enforced arbitrarily.  If Driessen or any individual were repeatedly issued citations for possession of marijuana they would never be convicted under 961.41(3g) and never face becoming a felon. Considering the range of statutes available to the state and court to punish a person for simple possession of marijuana are laws criminalizing such possession unconstitutionally vague and arbitrary?  Does the question of vagueness above meet any or all of the criteria necessary for review under 809.62(1r) a thru e?


3.) 961.41(3g) in part states: "…unless the person obtains the substance or the analog directly from, or pursuant to a valid prescription or order of, a practitioner who is acting in the course of his or her professional practice..." While this clause of the statute certainly illustrates the availability of an affirmative medicinal use defense and exemption to laws criminalizing marijuana possession, the state and the courts continue to ignore and override this legislation as it pertains to medicinal marijuana.  Directly below is a copy of a letter that is for all practical purposes a prescription for marijuana from an MD that no longer practices because he is a professor that teaches doctors and psychiatrists:


Dear Mr. Driessen,


It almost seems anachronistic to hear of someone threatened with incarceration for the possession of a small amount of marijuana, especially in a relatively enlightened state like Wisconsin.  If I were still practicing and if I lived in a state where it is possible for a physician to "prescribe" marijuana as a medicine, I would certainly make it possible for you to have an opportunity to use marijuana for the treatment of your depression, anxiety and joint pain.  While I am, at heart, very conservative in prescribing drugs, I find that where marijuana is concerned, because its toxicity is so limited, my attitude is: since there is anecdotal evidence supporting its use for these three purposes, you should try it and if it works great, if it doesn't you have lost nothing.


I wish you the best of luck.

Sincerely yours,

Lester Grinspoon M.D.


Lester Grinspoon MD

Harvard Medical School

35 Skyline Drive

Wellesley, MA 02482




Consider that on October 19, 2009 the US DOJ issued a memorandum stating in part: "As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." This means that the US government will no longer prosecute law abiding suppliers/sellers of medicinal marijuana in states that have similar clauses as Wisconsin 961.41(3g) which allows for the medicinal use of marijuana.  Considering that no case concerning medicinal use of marijuana has come before the Wisconsin Supreme Court since it has been announced in 2003 that the US government obtained a patent on marijuana, number 6,630,507 , negating the states claim that marijuana has no medicinal use, does the medicinal claim within this case, on it's own, present a constitutional, policy or novel question that meets any or all of the criteria necessary for review under 809.62(1r) a thru e?  


4.) In his Circuit Court pleadings pertaining to this case Driessen claimed to use marijuana in a religious sense within the meaning of the 1st Amendment of the US constitution and the Religious Freedom Restoration Act 42 U.S.C. 2000bb-2000bb(4).  Since the only case related to such a claim and challenge to the constitutionality of statutes prohibiting the use of marijuana was State v. Peck in 1988, from before the religious Freedom Restoration Act, and was a growing production, distribution case rather than a simple possession of a small amount case; does the question of the right to religious use of marijuana on it's own meet any or all of the criteria necessary for review under 809.62(1r) a thru e?    


5.) Petitioner Driessen has also developed an argument that through overwhelming popularity of marijuana use nation wide, verified by US Government statistics stating that over 42% of the population consisting of over 100 million people have tried marijuana at least once, has been submitted to the Courts. Marijuana use may have surpassed a threshold of popularity where it's possession and personal use can no longer be considered a crime and the law enforcement agent's self-serving agenda concerning marijuana must be restrained by the constitution and courts consisting of judges sworn to uphold it. Some people have compared marijuana use to speeding in an automobile, "everybody does it but you got caught and must pay the price."  A speeding ticket issued in response to well documented danger is a civil infraction not a freedom and life destroying criminal sanction. Although Driessen intends to develop this argument further, bearing in mind that a large portion of the population considers the state's compelling interest to criminalize marijuana fraudulent; does an overwhelming popularity of a behavior make criminal sanctions for such behavior unconstitutional?  Does the question directly above, on it's own, meet any or all of the criteria necessary for review under 809.62(1r) a thru e?        


    In conclusion Driessen asks that his Petition be allowed to proceed. Driessen again asks the court for clarification as to whether he is to write and file a brief or a petition and when is the due date limit for such document?  Driessen is scheduled to appear at a Circuit Court sentencing hearing January 8th, 2010, when he believes it is very likely he will be sentenced to a period of incarceration.  Driessen begs the court to consider and grant his motion for a stay pending appeal and/or petition sent and filed with the Court of Appeals along with his Notice of Appeal on November 25, 2009. Driessen is also interested in assisting the Court by supplying them with any and all possible relevant information they may require to make a well-informed decision including the possible attendance of any oral hearing.



Respectfully submitted,


_____ Dated   _Janurary 4, 2010___

Kenneth Leroy Driessen (pro se)

12022 N. Co. Rd. T

Hayward WI 54843





Marijuana Is Legal Prohibition The Crime