In 1998, nearly 60 percent of Washington voters approved the Medical Use of Marijuana Act (Initiative 692). This law allows physicians to authorize their patients with terminal or debilitating medical conditions to use marijuana for medical purposes.1
Yet nine years later, very sick people and their caregivers continued to be arrested and prosecuted for the medicinal use of marijuana. Some patients remained fearful of what might happen should they exercise their right to use medical marijuana and some physicians were reluctant to recommend medical marijuana to their patients.
This year, the Washington Legislature stepped in to address the problem by clarifying the law. Senate Bill 6032, sponsored by Sen. Jeanne Kohl-Welles, passed with strong bipartisan majorities in both the Senate (37-9) and the House (68-27). Backed by the ACLU of Washington, the Washington Association of Prosecuting Attorneys and medical marijuana patients and advocates, the measure became effective on July 22.
The bill strengthens Washington’s medical marijuana law by making several immediate changes and sets the stage for additional reforms in the 2009 Legislature. And for the first time, state legislators engaged in serious discussion of the value of marijuana as medicine and the need to provide greater protection to patients.
The Gray Areas of the Law
The Medical Use of Marijuana Act provides an affirmative defense to state criminal charges for patients who have been authorized by their medical or osteopathic physicians to use marijuana.2 The law also protects their designated providers.3 Qualifying patients and designated providers may “produce, possess, or administer” marijuana for a qualifying patient to treat his or her terminal or debilitating illness.4
Persistent problems have centered on how much medical marijuana is permissible. The Act defines the amount that a patient or provider may possess for the patient’s medical use simply as a “sixty-day supply.”5 The Act offers no guidance on how to quantify that amount nor does it explain how a patient or provider is to obtain usable medical marijuana, or the seeds or cuttings to produce it. This lack of clarity led to unnecessary arrests and prosecutions of very sick people.
Washington State Department of Health
SB 6032 requires the Washington State Department of Health to define a “sixty-day supply” of medical marijuana and produce a report to the Legislature on patient access to medical marijuana.6 The deadline to complete both assignments is July 1, 2008. The Department gathered public input in September at workshops in four cities and will continue accepting input via its Web site,7 email, fax and U.S. mail through December 31.
The “sixty-day supply” rule. The Health Department is to define the quantity of marijuana that “could reasonably be presumed to be a sixty-day supply” through the administrative rule-making process.8 Individual patients will be able to exceed the presumptive amount if they can present evidence of medical need in court. This ensures that the Department’s definition will act as a “safe harbor” for patients and their providers, rather than a maximum beyond which they lose the protections of the Act.
Law enforcement officers will have a clear guideline that will allow them to assess quickly and easily whether an individual likely is in compliance with the law. This should lead to fewer arrests and referrals for prosecution.
The “access report.” The Department also will prepare a report to the Legislature on access to “an adequate, safe, consistent, and secure source, including alternative distribution systems, of medical marijuana for qualifying patients.”9 The Department is to “gather information from medical and scientific literature, consulting with experts and the public, and reviewing the best practices of other states” in its work.10
The Act provides that someone may serve as a designated provider to only one patient at any one time.11 Application of this rule is impractical and inefficient. A friend or family member of a patient just diagnosed with breast cancer and scheduled to begin chemotherapy two days later cannot grow medical marijuana in time to ease that patient’s suffering. In the absence of a preexisting source for medical-grade marijuana, the patient and would-be provider are forced to buy a supply off the street.
For patients who can wait the three to four months required to grow seeds or cuttings into mature plants ready for harvest, the one-to-one ratio still poses difficulties. Many patients and providers do not have space to grow marijuana plants out of public view as required by the law. Nor do they have either the money to invest in the necessary growing equipment or the skill to ensure that the plants will survive and produce usable cannabis.
Additional Changes
The new law makes several other significant changes to the Act, including the following:
The “Shepherd fix.” In State v. Shepherd,12 the Court of Appeals upheld the felony conviction of a designated primary caregiver (now “designated provider”) on the grounds that the caregiver’s patient did not have “valid documentation.” The court held that the failure of the physician’s authorization to state, “The potential benefits of the medical use of marijuana would likely outweigh the health risks,” rendered the authorization invalid — despite the intent of the voters that physicians be allowed to authorize the medical use of marijuana whenever it might benefit the patient.13
SB 6032 addressed this problem by changing all previous uses of the terms “would” and “would likely” to “may.” Allowing physicians to authorize the medical use of marijuana whenever they are satisfied that it might help their patients should increase patient access to physician authorization.14
The “Mullins fix.” The previous statutory definition of a “primary caregiver” specifically stated that such an individual was “responsible for the housing, health, or care of the patient.”15 In State v. Mullins,16 the Court of Appeals affirmed the felony conviction of a designated primary caregiver, reasoning that the acquisition and provision of medical marijuana — the only services the patient had asked his caregiver to perform — did not qualify as being responsible for either the health or care of the patient.
SB 6032 addressed this problem by substituting a new definition of a “designated provider” that contains no requirement that the provider be responsible for any service other than acquiring and providing medical marijuana.
The “sample only” provision. SB 6032 says that law enforcement officers may “document the amount of [medical] marijuana, take a representative sample that is large enough to test, but not seize the marijuana. A law enforcement officer or agency shall not be held civilly liable for failure to seize marijuana in this circumstance.”17
This arguably prohibits law enforcement from destroying or confiscating more than a testable amount of a qualifying patient’s supply of medical marijuana.18 At a minimum, it expressly confirms that officers do not need to seize the medical marijuana of a qualifying patient.
Looking Forward
The Department of Health’s report will open the door to further improvements by the Legislature. Possible methods for ensuring patient access to medical marijuana include community gardens,19 allowing registered growers to provide medical marijuana to more than one patient at a time,20 permitting the formation of cooperative dispensaries21 or licensing medical marijuana producers and distributors.22
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Alison Chinn Holcomb is the ACLU of Washington’s Marijuana Education Project director. A longer version of this article originally appeared in the August 2007 issue of Washington Criminal Defense magazine, Vol. 21, No. 3, published jointly by the Washington Association of Criminal Defense Lawyers and the Washington Defenders Association.
1 See Title 69, Chapter 51A of the Revised Code of Washington.
2 RCW § 69.51A.040.
3 Id.
4 RCW § 69.51A.010(1).
5 RCW § 69.51A.040.
6 ESSB 6032, 60th Leg., Reg. Sess., Ch. 371, Laws of 2007, sec. 8.
7 http://www.doh.wa.gov/hsqa/medical-mari juana/.
8 ESSB 6032, 60th Leg., Reg. Sess., Ch. 371, Laws of 2007, sec. 8(1).
9 Id. at sec. 8(3).
10 Id.
11 RCW § 69.51A.010(1)(d).
12 110 Wn. App. 544, 41 P.3d 1235, rev. denied, 147 Wn.2d 1017, 56 P.3d
992 (2002).
13 Compare RCW § 69.51A.010(5) (defining “valid documentation”) with § 69.51A.005 (“The people of Washington state find that some patients with terminal or debilitating illnesses, under their physician’s care, may benefit from the medical use of marijuana.”).
14 The Washington State Medical Association has a model medical marijuana authorization form available on its Web site: http://www.wsma.org/ memresources/Med_Mari_authorization.pdf.
15 See former RCW § 69.51A.010(2)(b).
16 128 Wn. App. 633, 116 P.3d 441 (2005).
17 ESSB 6032, 60th Leg. Reg. Sess., Ch. 371, Laws of 2007, sec. 5(1).
18 Note the difference in the clear import of the language if the word “and” is substituted for “but” in the first sentence.
19 See, e.g., http://www.ci.seattle.wa.us/neigh borhoods/ppatch/.
20 See ORS §§ 475.304–.320.
21 See Cal. Health and Safety Code § 11362.775.
22 See New Mexico Senate Bill 523, the “Lynn and Erin Compassionate Use Act,” effective July 1, 2007.
