How to Defend a Medical Marijuana Case in Washington State
i. Patient of a Physician Licensed under RCW 18.71 or 18.57
ii. Diagnosed by that Physician as Having Terminal or Debilitating Medical Condition
iii. Legal Resident at Time of Diagnosis
iv. Advised of Potential Benefits and Risks/Benefits Likely Outweigh Risks/Valid Documentation
This manual will guide you through defending a medical marijuana case in Washington State. As you probably know, in 1998, Washington voters passed the Medical Use of Marijuana Act, providing an affirmative defense to qualifying medical marijuana patients, doctors, and primary caregivers. The Act was codified as RCW 69.51A. You can read it in its entirety here.
We hope you will find this manual to be a comprehensive resource; it represents hours of research and collaboration between experienced medical marijuana defense attorneys, activists, and legal experts.
A. The Statute
In 1998, Washington voters passed Initiative 692, which is now codified in Washington law as RCW 69.51A. This statute provides an affirmative defense at trial for qualifying medical marijuana patients, doctors, and caregivers. The defendant must prove all elements of the defense by a preponderance of the evidence, meaning that his/her claims must be more likely true than not.
B. Intent in Enactment
The statement of intent holds that marijuana may be effective for a number of conditions (it provides a non-exhaustive list) and that “humanitarian compassion” requires that the decision whether to pursue marijuana as treatment be left between patient and doctor. It also states the voters' intent that medical marijuana patients, doctors, and caregivers be protected from criminal sanction.
C. How to Construe the Statute
This issue is the key to winning many arguments on gray areas in the law. We would argue that RCW 69.51A is clearly a remedial statute, meant to grant relief to suffering patients previously unable to acquire their medicine or subject to criminal conviction for doing so. (The statement of intent holds that “(t)he people find that humanitarian compassion necessitates” that the decision to use medical marijuana occurs between patient and doctor without external interference and with protection from criminal sanction. RCW 69.51A.005.) Because RCW 69.51A is a remedial statute, it should be construed liberally in favor of the patients, doctors, and caregivers it is meant to protect. See, e.g., In re Myers, 105 Wn.2d 257, 267 (1986), (citing State v. Grant 89 Wn.2d 678, 685 (1978)), “The court construes remedial statutes liberally in order to effect the remedial purpose for which the Legislature enacted the statute”; Go2net, Inc. v. FreeYellow.com, Inc., 158 Wn.2d 247, 253 (2006), (quoting Kittilson v. Ford, 23 Wn. App. 402, 407 (1979), aff’d, 93 Wn.2d 223, 608 (1980), (quoting 3 C. Dallas Sands, Statutes and Statutory Construction 60.01 (4th ed. 1973))), “The court is ‘guided by the principle that “remedial statutes are liberally construed to suppress the evil and advance the remedy.’””
Unfortunately, in a number of cases, courts have chosen to construe the statute narrowly against patients. This happened recently in State v. Tracy, where the Supreme Court was presented with the remedial statute/liberal construction argument and chose not to accept it. (In Tracy, the issue was whether a patient’s doctor, licensed in California and permitted to practice in Washington, qualified as a “licensed” physician under RCW 18.71 and 18.57.) However, the court’s decision said nothing explicitly about how to interpret the statute, leaving the door open, if a little less than we would hope, for the remedial statute argument.
A. Knapstad Motion to Dismiss on Insufficient Evidence
Many medical marijuana cases seem as though they should be easily resolved to anyone with an understanding of the law. Unfortunately, it is not rare for a patient who has complied with the statute to be arrested and prosecuted. Most prosecutors are savvy enough to dispute some factual element of the affirmative defense. However, if you’re lucky enough to run across a prosecutor who is not so savvy, your client has the option of bringing a Knapstad motion to dismiss, or agreeing to a stipulated trial. The Knapstad motion is generally the better option, as it protects your case better on appeal (prosecutors will be unlikely to agree to stipulated facts that include favorable-to-the-defendant expert testimony, for example), and still gives you the option of going to a jury, which generally tends to be more sympathetic than a judge.
In State v. Knapstad, the Washington Supreme Court held that “a trial court may dismiss charges after the State's opening statement to a jury when it is clear beyond doubt that the statement affirmatively includes factual matter which constitutes a complete defense to the charge or expressly excludes factual matter essential to a conviction.” State v. Knasptad, 107 Wn.2d 346, 351-352 (1986) (citing State v. Gallagher, 15 Wn. App. 267. 270 (1976). Further…”a trial court may dismiss if the State's pleadings including any bill of particulars, are insufficient to raise a jury issue on all elements of the charge.” id. at 352.
B. Motion for Return of Property
As in any criminal case, you will want to be particularly alert to illegal search and seizure issues, and, when appropriate, file the necessary motions to suppress and return property.
C. Franks Hearing Regarding Warrant
One potential tool for the medical marijuana defendant is the Franks hearing. “If a defendant can make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” Franks v. Delaware, 438 U.S. 154, 155-156 (1978). In Washington State, among other places, this rule has been extended to cover material omissions that are knowingly and intentionally misleading or made with reckless disregard for the truth. State v. Cord, 103 Wn.2d 361, 367 (1985). If, at the hearing, the defendant establishes by a preponderance of evidence such perjury or reckless disregard for truth, the affidavit’s false material is set aside (or omitted material included), and if the remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded. Franks at 156.
The Franks hearing has the potential to be helpful in defending medical marijuana cases because it is not unusual for police to exclude from affidavits information indicating that the suspect is a medical marijuana patient.
D. State’s Motion to Exclude Medical Marijuana Defense
Prosecutors frequently move to exclude the medical marijuana defense. However, they have a high bar to clear. To be able to present the defense to a jury, the defendant must simply present evidence that, evaluated in the light most favorable to the defendant, would justify giving the jury the instruction on the defense. State v. Ginn, 128 Wn. App. 872, 879 (2005) “The jury, not the judge, must weigh the proof and evaluate the witnesses’ credibility.” Ginn at 879 (citing State v. May, 100 Wn. App. 478, 482). If a defendant can present evidence of each element of the medical marijuana defense, (s)he is entitled to present the defense at trial. Ginn at 883.
A. Elements of Defense
To assert the medical marijuana defense at trial, the defendant must:
- be a patient of a physician licensed under RCW 18.71 or 18.57;
- have been diagnosed by that physician as having a terminal or debilitating medical condition
- have been a legal resident of Washington at the time of the diagnosis;
- have been advised by that physician of the potential benefits and risks of using marijuana as medicine;
- have been advised that, in the physician’s professional opinion, the benefits “would likely” outweigh the risks;
- be able to present valid documentation showing that (s)he is a legal patient under the statute
i. Patient of a Physician Licensed under RCW 18.71 or 18.57
The issue of the meaning of the term “licensed” under RCW 18.71 or 18.57 was recently decided at the Washington Supreme Court. In State v. Tracy, the Court ruled that to be licensed under those statutes meant to be licensed by the state of Washington, rather than licensed by another state and permitted to practice under those statutes. Should it be the case that your client’s physician is licensed in another state but not in Washington, you won’t have a defense under RCW 69.51A, and your best shot will probably be to try a common law medical necessity defense.
ii. Diagnosed by That Physician as Having a Terminal or Debilitating Medical Condition
To qualify for protection by the statute, the patient must be diagnosed by his/her Washington-licensed physician as having a “terminal or debilitating medical condition.” The statute defines terminal or debilitating medical condition as:
- Cancer, human immunodeficiency virus (HIV), multiple sclerosis, epilepsy or other seizure disorder, or spasticity disorders;
- Intractable pain, limited for the purpose of this chapter to mean pain unrelieved by standard medical treatments and medications;
- Glaucoma, either acute or chronic, limited for the purpose of this chapter to mean increased intraocular pressure unrelieved by standard treatments and medications;
- Any other medical condition duly approved by the Washington state medical quality assurance board [commission] as directed in this chapter.
RCW 69.51A.010(4)(a-d). The Washington State Medical Quality Assurance Commission has since added the following to the list of approved conditions:
- Crohn’s disease with debilitating symptoms unrelieved by standard treatments or medications (November 5, 1999 Final Order)
- Hepatitis C with debilitating nausea and/or intractable pain unrelieved by standard treatments or medications
- Any disease, including anorexia, which results in nausea, vomiting, wasting, appetite loss, cramping, seizures, muscle spasms, and/or spasticity, when these symptoms are unrelieved by standard treatments or medications. (June 19, 2000 Final Order)
Be sure to note RCW 69.51A.010(4)(b) (“intractable pain, limited for the purpose of this chapter to mean pain unrelieved by standard medical treatments and medications”). This functions as a catch-all and provides a defense to patients whose conditions are not on the approved list, provided they can show that standard treatments and medications have failed them.
One last note: if your client is successfully using marijuana to treat a condition not listed above, please encourage him/her to contact us, as speaking with such patients gives us a better idea of what conditions we might petition the Medical Quality Assurance Commission to add to the list.
iii. Legal Resident at Time of Diagnosis
This one is pretty self-explanatory. To be protected under the statute, the defendant must have been a Washington State resident at the time of the diagnosis. Washington does not offer reciprocity to patients who are covered by other states’ statutes.
iv. Advised of Potential Benefits and Risks/Benefits Likely Outweigh Risks/Valid Documentation
We combine these three elements—the physician’s advising the patient of the potential benefits and risks of medical marijuana use; the physician’s considered, professional opinion that the benefits would likely outweigh the risks; and the patient’s valid documentation—because the last is usually used to prove the first two. In fact, to be valid documentation, a recommendation or set of medical records must state that, in the physician’s professional opinion, “the potential benefits of the medical use of marijuana would likely outweigh the health risks.” RCW 69.51A.010(5)(A). Thus, we will begin by looking at what constitutes valid documentation and afterward address your options should the documentation fail to prove…
When evaluating the validity of a recommendation, there are a few things to consider. First, is the physician who signed the recommendation appropriately licensed? Second, does the recommendation contain the required language? In State v. Shepherd, the Division Three Court of Appeals held that the recommendation must state that, for the patient, the benefits of the medical use of marijuana “would likely” outweigh the risks; stating that the benefits “may” outweigh the risks is not sufficient. 110 Wn. App. 544, 551 (2002). This ruling does indeed match the language the statute says the recommendation requires. RCW 69.51A.010(5)(a) (“which states that, in the physician’s professional opinion, the potential benefits...would likely outweigh the health risks”). However, the declaration of intent states that the voters intend that “(p)hysicians also be excepted from liability and prosecution for the authorization of marijuana use to qualifying patients for whom, in the physician’s professional judgment, medical marijuana may prove beneficial.” RCW 69.51A.005 (emphasis added). Thus, there is room to argue that the statute is ambiguous, that the voter intent is to protect the patient, and, once again, that the statute’s remedial nature should lead to its broad construction in favor of patients.
Another element of valid documentation is that the patient must have proof of Washington State residency, such as a driver’s license or identicard. RCW 69.51A.010(5)(b).
Additionally, the patient must have obtained the recommendation “in advance of law enforcement questioning his possession.” State v. Butler, 126 Wn. App. 741, 750, 751 (2005). If your client has not obtained a written recommendation, but his/her medical records contains any mention of a discussion of medical marijuana that predated the encounter with law enforcement, you can use those records, supplemented with doctor’s testimony about his/her advising the patient of the risks and benefits, to argue that the defendant is in compliance with RCW 69.51A.010(5)(a) (“Valid documentation means: A statement by a qualifying patient’s physician, or a copy of a qualifying patient’s medical records, which states that, in the physician’s professional opinion, the potential benefits of the medical use of marijuana would likely outweigh the health risks” for that patient.)
Finally, if this evidence is challenged prior to trial as a motion to exclude the defense, you should supplement the above arguments by invoking the precedent of Ginn to get to a jury. As long as you can make a case that a reasonable jury could find in the defendant’s favor, you can get to a jury and use the doctor’s testimony to supplement his/her recommendation and argue that the recommendation qualifies under the statute.
B. Sixty-Day Supply
One of the most frequent issues in medical marijuana cases is what constitutes a sixty-day supply. RCW 69.51A.040(2)(b) specifies that a qualifying patient may possess no more medicine than is necessary for a sixty-day supply. RCW 69.51A.040(2)(b). It does not, however, give any indication of what constitutes a 60-day supply.
Establishing what constitutes a sixty-day supply is complicated by the fact that many believe that, to protect themselves legally, doctors should not put amounts on recommendations. (This is because, while the First Amendment protects a doctor’s right to discuss the potential benefits of marijuana use with his/her patient (Conant v. Walters, 309 F.3d 629 (2002)), specifying recommended amounts has the potential to be interpreted as an attempt at an illegal precription--something that could cost a doctor his/her license or to subject him/her to prosecution for conspiracy to distribute.) Nevertheless, prosecutors are likely to argue that, without an amount on the recommendation, it is impossible to tell what constitutes a sixty-day supply. They will likely point to State v. Shepherd, in which the Division Three Court of Appeals states “(W)hile nothing in the act requires the doctor to disclose the patient’s particular illness, there must, nonetheless, be some statement as to how much he or she needs.” State v. Shepherd,110 Wn. App. 544, 552 (2002). At first glance, this seems to suggest that the doctor must make a statement as to amount to be used, and the prosecutors will argue that that statement must be in the recommendation. However, at a closer glance, we find that Shepherd controls little, if anything, regarding how to prove compliance with the supply limit.
Shepherd was a stipulated facts bench trial in which the defendant’s only evidence of compliance with the supply limit was a report by the Public Safety Committee of the Oakland City Council describing a method for determining the amount of usable medicine. Shepherd at 552. Thus, the defendant provided no evidence regarding his own use, and because the facts were stipulated, there was no opportunity to present expert testimony, which may have qualified or supplemented a “statement” or otherwise persuaded a jury.
For defense purposes, Shepherd is essentially nullified by State v. Ginn 182 Wn App. 872 (2005), review denied, 157 Wn.2d 1010 (2006). In Ginn, the Division Two Court of Appeals reviewed a case in which the trial judge had denied the defendant the right to present the medical marijuana defense at trial. In its review, the court found that the defendant was wrongly denied the defense. Ginn at 874. When the defendant presents evidence for each element of the defense that, viewed in the light most favorable to the defendant, might lead a reasonable jury to find in her favor, the defendant must be allowed to present the defense at trial. Ginn at 883. “The jury, not the judge, must weigh the proof and evaluate the witnesses’ credibility.” id. Once you reach trial, the doctor’s testimony must be admitted, and the test becomes less formalistic.
How, then, to establish that the defendant is within the supply limit? It is best if (s)he keeps a log of daily use. If this is the case, you may introduce it into evidence without having to put her on the stand. If not, you may have her provide an affidavit as to daily dosage. If she is going to testify, she can obviously provide this information in her testimony.
It is a good idea to have the doctor testify as well. While the doctor must take care to stay within federal law regarding recommendation of amounts, (s)he may testify as to what, in her expert opinion, is a typical or average dosage, or may simply state that the amount defendant claims to use is, in his/her expert opinion, a reasonable amount for the treatment of the defendant’s condition. One study that you and the doctor may find particularly helpful in buttressing any testimony as to a reasonable or necessary dosage is "Medical Cannabis: Rational Guidelines for Dosing".
C. Community Gardens
One of the biggest gray areas of the law is the issue of community gardens. The law makes clear that an individual may be a primary caregiver to no more than one patient at a time, and also makes clear that a patient or primary caregiver may never possess more than a sixty-day supply. However, what the law does not make clear is whether patients may join together to form a community garden that contains no more than a sixty-day supply for the community.
Given the ambiguity of the statute and the lack of case law, the best arguments to make here are probably those regarding canons of interpretation—that the statute, being remedial, should be interpreted broadly in favor of those whose situation it is meant to remedy. For more on this, see the section on “How to Construe.”
Be prepared for prosecutorial arguments that common law principles of joint ownership give each member ownership of the entire garden, leading to each member exceeding his/her sixty-day supply. One counterargument is that the statute supplants the common law, though arguing this could put you in a difficult position if you are also having to argue a medical necessity defense that relies on the assumption that the statute does not supersede the common law (see section on medical necessity). Your best bet here is once again to argue for a liberal construction of the statute to effect its remedial purpose—ensuring access to medicine for qualifying patients.
D. Drug Testing Associated with Probation or Stipulated Orders of Continuance
It is not unusual that one condition of probation or a stipulated order of continuance is that the person on probation must pass regular drug tests. Typically, the wording of these agreements allows for positive tests resulting from validly prescribed drugs. However, as you know, medical marijuana is not a prescription drug. This can cause problems with prosecutors, probation officers, and others who argue that medical marijuana use constitutes non-compliance with the terms of the probation or SOC. There is no known case law on this situation, but at least several district courts have ruled that testing positive for marijuana as a result of medical use does not constitute a violation of probation resulting from a DUI conviction.
E. Medical Necessity
If your client is unable to present or qualify for the affirmative defense, (s)he has the option of bringing a medical necessity defense. At one time, Washington courts recognized a defense of medical necessity for marijuana use. State v. Diana, 24 Wn. App. 908 (1979); State v. Cole, 74 Wn. App. 571, review denied, 125 Wn.2d 1012 (1994). However, after the Supreme Court ruled in Seeley v. State (132 Wn.2d 776 (1997)) that Washington’s classification of marijuana as a Schedule 1 drug did not violate the state constitution, the Division Two Court of Appeals ruled that there is no medical necessity defense for Schedule 1 drugs. State v. Williams, 93 Wn. App. 340, 347 (1998), review denied, 138 Wn.2d 1002 (1999). The Division Two Court of Appeals affirmed that rule in State v. Butler, 126 Wn. App. 741, 745-748 (2005).
However, because there is a division split, with Division Two having rejected the common law medical necessity defense for medical marijuana, but with Division Three’s most recent precedent on the issue being Diana, a recent case entitled State v. Maki has been bumped to the Supreme Court to decide the issue definitively. This presents another opportunity for you to argue for a stay of your client’s case.