Are you a medical marijuana patient facing state charges in Washington?
If you are arrested for a marijuana offense and the prosecutor files charges, you will first face an arraignment, where you will plead guilty or not guilty. If you plead not guilty, you will have various motions hearings and eventually you may go to trial before a jury or judge, and the process may take a significant amount of time. Use a Public Defender or private attorney, and feel free to have her or him contact us at legalsupport@safeaccessnow.org to discuss trial strategy.
Washington's Measure 692, a statutory ballot initiative, originally passed with 59% of the vote on November 3, 1998, and was then modified by S.B. 6032, which took effect on July 22, 2007, and which required the Washington Department of Health to hold hearings for public comment to develop new administrative rules to set the definition of "sixty-day supply". Washington's current medical marijuana law can be found in Revised Code of Washington, Chapter 69.51A and the regulations, which were finalized on October 2, 2008, and will go into effect on November 2, 2008, can be found at WSR 08-21-001.
State law allows a patient with valid documentation (also known as a recommendation) and a designated provider to collectively possess a "sixty-day supply", which has been defined as 24 oz. of processed bud, and 15 plants. However, patients who possess larger quantities of cannabis than those approved by the Department will be able to overcome the presumption of the previously stated "sixty-day supply" guidelines if they present evidence indicating that they require such amounts for "necessary medical use".
Currently, there are no provisions in Washington's law regarding registry identification cards, and the Washington Department of Health does not issue them. Hence, only valid documentation is necessary in order to assert a medical marijuana affirmative defense in state court, and valid documentation is a statement from the physician (either an original or a copy), or a copy of the patient's medical records, that notes that the patient has been diagnosed with a "terminal or debilitating medical condition", that the patient was advised of the "risks and benefits of the medical use of marijuana" and that the patient "might benefit from the medical use of marijuana".
A medical marijuana patient may have 1 designated provider who may serve only 1 patient at a time. In Washington, a "terminal or debilitating medical condition" is:
It is a misdemeanor for a Washington patient to use or display medicine in a manner or place which is open to the view of the general public and smoking marijuana in any public place does not have to be accommodated. On-site medical use of marijuana also does not have to be accommodated in any place of employment; in any school bus or on any school grounds, in any youth center, and in any correctional facility. Additionally, a patient engaging in the medical use of marijuana in a way that endangers the health or well-being of any person through the use of a motorized vehicle on a street, road, or highway shall not be entitled to claim the medical marijuana affirmative defense.
For more information, see What the Law Says & How to Become a Patient.
Another important resource is the Washington State Department of Health website, which has a legal analysis of the new rule, and FAQ's on the rule and on the original law.
Additionally, the Washington State Medical Association has some helpful information, including a sample recommendation.
On ASA's website, we have a comprehensive guide for lawyers about How to Defend a Medical Marijuana case in Washington State.
Additionally, the Potline is a great resource for your legal questions, and the ACLU of Washington, Drug Reform Project also has an informative website, which includes a 2007 guide to the and also an older guide. CannabisMD also has relevant information and resources.
Additionally, while ASA is unaware of any current precedential Washington caselaw supporting the return of marijuana to a patient if there is a lack of probable cause, it should be possible for a Washington patient to get his or her legal amount of medicine back from law enforcement if it was wrongfully seized and the criminal case has not been prosecuted or has been dismissed, based on the text of the law itself. The Revised Code of Washington, Chapter 69.51A states: "If a law enforcement officer determines that marijuana is being possessed lawfully under the medical marijuana law, the officer may document the amount of 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." It also says: "The lawful possession or manufacture of medical marijuana as authorized by this chapter shall not result in the forfeiture or seizure of any property."
For more information on how this type of process works in California, take a look at our Return of Property page. You and your Public Defender or private attorney can research whether your state has a Return of Property process and special proceedings in Criminal Court, and you can attempt to apply the reasoning of the California Motion for Return of Property, and create a similar State motion. For more information on filing this motion, contact ASA's Legal Services Coordinator.
Make sure you give all of this information to your Public Defender or private attorney and discuss it with her or him, and also that you and your lawyer continue to research whether there is any new caselaw in your state regarding medical marijuana. For information about how to find a lawyer familiar with medical marijuana law in your state, contact local activists to see if they have any information at Local Resources. Doug Hiatt is an involved activist and lawyer in Washington that may have helpful thoughts on your case. Also, here is a link to possible lawyers from the NORML website, and another lawyer site.
