The Evergreen Statement: Medical Marijuana In Washington, 2008

A New Law

In 2007 a deep rift divided the medical marijuana community in Washington concerning legislative revisions of The Medical Use of Marijuana Act of 1998. Marijuana patients and providers who favored an open market system found their hopes dashed as specific protections for medical marijuana dispensaries were removed from the first draft of Senate Bill 6032.

While some reacted to that first edit and other limits with heated antipathy, many mmj patients and patient representatives heralded SB 6032 as a small but positive step towards more complete legal protections for Washington’s vulnerable population of severely ill marijuana patients. However, approximately one year after SB 6032 split the Puget Sound patient population in two, it has become clear that both sides underestimated the rancor of opposition. Recent history shows minor gains in the treatment of marijuana patients remain more elusive than either faction had predicted.

Ignoring The Law

While the WA State Legislature and Executive Offices have enacted clear legal protections for qualified marijuana patients, many prosecutors’ offices around the state have shown no more regard for the 2007 legislative update than they had for the citizen’s initiative of 1998. Ten years after Seattle’s first medical necessity trial, the treatment of medical marijuana users has softened slightly in some communities, but unjust seizures of medicine and unwarranted prosecutions of qualified patients have definitely not abated. Authors of SB 6032 intended to close legal loopholes used in overzealous prosecution of qualified marijuana patients. State prosecutors did formally approve the new law before it was signed by the governor. Yet there has been no visible shift in the prosecution of marijuana cases since that time. Marijuana patients still face a monumental challenge in most jurisdictions. Minor technicalities remain major stumbling blocks for qualified patients who face dire legal consequences.

One particular prosecution of a 66 year-old grandmother seemed so unjust the prosecutor’s office earned a public rebuke by Senator Jeanne Kohl-Welles, sponsor of SB 6032. In another example, a father’s legal medical marijuana garden was summarily destroyed by the stone-faced Highway Patrol. The man’s father-in-law had been killed in a car crash, but a granddaughter, the son-in-law’s 8 year old daughter, survived and was questioned by police investigators who then used the child’s innocent remarks to obtain a search warrant. Those are two cases of blind mis-justice from 2007.

Yet the bigger picture is no less grim. Washington’s leading medical marijuana defense attorney, Douglas Hiatt, cites more than 25 medical marijuana cases now pending.

Enforcing Ignorance

Even while losing, Douglas Hiatt has scored a few small successes. Armed with the public outcry of many sympathetic citizens, Hiatt did convince certain Department of Corrections officers that a medical marijuana recommendation served as a “functional equivalent” to a medical prescription in the case of CA patient and WA defendant Sharon Tracy. Tracy was quietly allowed to use medical marijuana while serving her probation sentence after losing a State Supreme Court bid to validate out-of-state marijuana recommendations. However, even that small success has been repudiated in the intervening months.

One example of technical non-compliance is the case of Harvey Maki, a man who definitely qualifies under state law, even though he failed to get his medical recommendation prior to his arrest. This case has already been argued before the Court of Appeals. A State Supreme Court ruling should be forthcoming by the fall of 2008. At stake here are rights of medical necessity, the statutes used to defend marijuana patients before the Medical Use of Marijuana Act of 1998. If this case fails, there may be no stopping the legal assault on many poor or unpapered marijuana patients—those who have not followed the exact letter of the law.

In every case known in this report, including those patients who were in full compliance with state laws, there is not one example where police officers complied with the protocol outlined in the 2007 legislative update, SB 6032. Our new state law directs that “. . . officers may document the amount in question, but not seize the marijuana." Yet in every case known, every bit of medical marijuana was taken by police immediately, without hesitation, and in no case has that marijuana been returned to the patient.

In most of those cases, the amount in question has been assumed to be more than allowed under the 60 day supply provision. In fact, there are no cases known where an amount possessed was deemed allowable. In virtually all cases involving live cannabis plants, unscientific limits remain the central focus of continued prosecution. While it is true that a few medical marijuana patients have been discovered to possess amounts far beyond the typical range, it is also true that many police departments lacking medical credentials have nonetheless set unreasonable standards for medical dosing.

Legal determination of an allowable amount under our 60 day supply rule has not yet been completed by the WA Department of Health. It is likely that DOH determination, to be released by July of this year, will make or break many affirmative defenses currently on the books. Until DOH determination of the 60 day supply limit is made public, WA marijuana patients have no legal guidelines to follow. Even a modest grower might be convicted in the future for surpassing those as-yet unknown figures.

Practicing Medicine at the Department of Corrections

Another heated debate within the Evergreen State marijuana community has centered on the treatment of qualified marijuana patients who have become involved with the legal system due to some separate legal issue. While defense attorneys hold the statute protects qualified patients regardless of other legal issues, the office of the Attorney General of Washington State disagrees. The AG sent a memo to state prosecutors in 2007, three months after 6032 was signed into law by Gov. Gregoire. The Attorney General declared the medical marijuana statute not applicable to violations of supervision. In other words, if one is convicted of any crime involving probation or other forms of supervision, one’s medicinal status will certainly be compromised by corrections officers under orders to report medical use as a violation of probation, regardless of a medical recommendation.

Sharon Tracy was allowed to use medical marijuana while she was under supervision by the Department of Corrections. That quiet decision was made several months prior to the AG memo. Since that time, no one known in this report has found such favorable treatment. We do know of 4 qualified medical marijuana patients who are currently denied the use of cannabis.

Tragic is the case of one reckless driver who spent two years in prison for killing his passenger in a car crash. The convict apparently earned early release largely because he was completely paralyzed in the crash and the expense of his personal care is exorbitant. Although many doctors agree that cannabis is known to be of immense relief for this man, the homegrown herbal remedy is strictly verboten for that sorry fellow in Thurston County. Another medical marijuana patient has a March hearing in Clallam County because he has tested positive of marijuana in a probationary urine analysis. The man is not allowed an attorney at the probation hearing, so there is little hope of salvation, despite his medical authorization.

A marijuana patient in Snohomish County was shocked to hear that his deferred prosecution would be revoked. After more than a year of supervised abstinence from alcohol, following a DUI arrest for alcohol intoxication, the marijuana patient may soon have an additional sentence imposed. He has always tested positive for cannabinoids, but his doctor’s recommendation was suddenly rejected by a newly presiding judge. If this March 17th Hearing unfolds as promised, this case will move to the State Court of Appeals where it may help set a favorable precedent for other marijuana patients in similar straits.

NOTE: Some of these cases listed here may be won with a judicial ruling that the standard medical marijuana recommendation is “functionally equivalent” to any other physician recommendation. If such were to occur, every medical marijuana recommendation now current would need to be renewed annually just as all other medicinal prescriptions are only valid for one year.

Ten years after the first Medical Use Act, prosecution of medical marijuana users continues to be a primary effort of most jurisdictions. Resultant fallout in other legal arenas creates situations such as that of the Island County father who lost custody of his daughter. A bitter wife told the divorce court that her estranged husband was a pot user. The father was quick to admit he used marijuana legally under the medical statute, and the judge refused to allow him custody of his daughter for that exact reason.

The More Things Change . . .

The US Supreme Court has ruled that The Controlled Substances Act signed by Richard Nixon in 1970 is legally superior to Constitutional guarantees of individual state rights. Federal law trumps state law. California, known as the leader in the national medical marijuana movement, set a negative precedent in the Ross vs. Raging Wire case—employers were vindicated for firing a marijuana patient solely on that discriminatory basis. Both Oregon & Washington marijuana statutes acquiesce to the rights of employers to abide by federal laws prohibiting marijuana for any purpose. Allowing corporate enforcement of federal laws, however, pits the rights of a corporation against the rights of sick and disabled people to live and work as productive members of society. The situation becomes more alarming in the management and administration of health care. For example, some doctors are prohibited from recommending medical marijuana by their federally-funded hospital administrations. This legal conflict becomes a serious life and death issue for some. There are three cases known where a prospective kidney or liver recipient was denied a life-saving transplant after testing positive for cannabis.

It is not the role of this report to question decisions made by physicians in the name of modern medical science. However, it is also not the role of police and attorneys to countermand the recommendations of our medical practitioners. With the wealth of research now available, there is no question that marijuana has remarkable medical value. We have heard many politicians say that 2008 is time for change in America. We believe it is time for justice to be done in the courtroom, leaving medicine to be practiced by physicians.

~ Martin Martinez
www.cannabismd.org