Washington State Medical Marijuana Laws

Medical Marijuana Laws: The medical marijuana imitative, I-692, was passed in 1998 by a 59% majority. The current law is codified in RCW 69.51A. E2SSB 5073 was passed on April 21, 2011 and vetoed in part by Governor Gregoire. The sections of the bill that are codified into law are included below and take effect on July 22, 2011.

Who is entitled to protection under the medical marijuana statute?: A “qualifying patient” is allowed to possess marijuana for medical purposes subject to the limitations and requirements below. A “qualifying patient is someone whom:

(a) Is a patient of a “health care professional“;
(i) a physician,
(ii) a physician assistant,
(iii) an osteopathic physician,
(iv) an osteopathic physicians’ assistant,
(v) a naturopath, or
(vi) an advanced registered nurse practitioner.

(b) Has been diagnosed by that health care professional with one of the following medical conditions;
(i) Cancer, human immunodeficiency virus (HIV), hepatitis C, anorexia;
(ii) multiple sclerosis, epilepsy or other seizure and spasticity disorders;
(iii) Glaucoma, either acute or chronic;
(iv) Crohn’s disease;
(v) Some form of intractable pain by patient with debilitating or chronic illness;
(v) Hepatitis C with debilitating nausea or intractable pain unrelieved by standard treatments or medications; or
(vii) Any other medical condition duly approved by the Washington state medical quality assurance commission in consultation with the board of osteopathic medicine and surgery as directed in this chapter.

(c) Is a resident of the state of Washington at the time of such diagnosis;

(d) Has been advised by that health care professional about the risks and benefits of the medical use of marijuana; and has been advised by that health care professional that they may benefit from the medical use of marijuana.

A “designated care provider” is protected under the statute for transporting or otherwise providing medicinal marijuana for a “qualified patient.” To be a designated care provider must be at least 18 years old, can only be a designated provider to one patient at a time, cannot use the patient’s marijuana and must have been designated in writing by a patient to serve as a designated provider under this chapter.

2011 Update: A qualifying patient may revoke his or her written designation a specific designated provider at anytime. Revocation MUST be in writing signed and dated. Likewise, a person serving as a provider may stop serving a patient at anytime. However, the provider cannot begin serving a new patient for fifteen days.

Health care providers are excepted from the state’s criminal laws and shall not be penalized in any manner, or denied any right or privilege, for advising a qualifying patient about the risks and benefits of medical use of marijuana or providing a qualifying patient with valid documentation.

Law enforcement cannot be held civilly liable for failure to seize marijuana when there is evidence of evidence of possession or cultivation for medical use.

The State of Washington is not liable for any issues arising out of the improper seizure or forfeiture of any property of persons otherwise lawfully entitled to the possession and use of medical marijuana.

Attorneys do NOT have any statutory protection from liability pertaining to the use of medical marijuana. Of greatest concern is federal (or state) criminal liability in helping set up dispensaries, cooperatives or any way assisting with the cultivation or possession of marijuana contrary federal or state law.

How much can a patient (or caregiver) possess?: A qualifying patient or designated care provider may possess a 60-day supply of marijuana. The Washington State Department of Health is charged with determining what is a 60-day supply and has determined this to be presumptively:

(1) no more than twenty-four ounces of useable marijuana, and/or
(2) no more than fifteen plants.

WAC 246-75-010 allows the presumption of what constitutes a 60-day supply to “be overcome with evidence of a qualifying patient’s necessary medical use.”

2011 Update: The above presumptive 60-day supply has been codified in RCW 69.51.040. In addition, the statute has been amended to include language allowing an affirmative defense to larger quantities upon showing medical necessity of the patient.

How does a patient get medical marijuana?:  It is illegal to buy or sell marijuana regardless of your status as a care provider or qualifying patient. Part of the frustration with the current law is that there are currently few practical ways for a patient to obtain medical marijuana.

Dispensaries: The approval and creation of dispensaries caused the biggest buzz around the 2010 legislation to amend the medical marijuana laws. Sec. 702 of E2SSB 5073 as passed by the Senate and House of Representatives allowed for the creation of dispensaries to purchase and sell medical marijuana to qualified patients and their designated providers. The Governor vetoed this portion of the bill because of concerns over criminal liability for State workers. Currently, dispensaries are not legal. You could be subject to arrest by State and Federal authorities if you participate in the sale of marijuana. The City of Seattle has chosen to ignore dispensaries creating a safe-haven in Seattle. However, this could change on a whim and the explosions of dispensaries in Seattle may dictate some type of action in the future. NOTE: the City of Seattle will not prosecute Possession of Marijuana cases unless other facts dictate a deviation from this policy. The Seattle City Attorney supported the creation and regulation of dispensaries that were ultimately vetoed by the Governor. As of now, no clear policy as to the treatment of dispensaries in Seattle appears to exist.

The future of dispensaries in Washington probably hinges on the outcome of two important federal cases: The future of medical marijuana laws in Washington will likely be shaped by two pending federal cases. In Montana, several medical marijuana providers have sued the federal government for civil rights violations. This lawsuit alleges that the 10th Amendment reserves the issue of medical marijuana for the states. In the second case, Arizona has asked a federal district court to issue an advisory opinion regarding liability for state workers. Arizona, like Washington is concerned about putting state workers in harm’s way. Arizona has asked the court to issue an opinion on whether state workers are protected from federal criminal liability if they are operating under the direction of, and in compliance with, state law.

Grow It Yourself: A qualified patient or his designated care giver may grow up to 15 plants at a time.

2011 Update - Cooperatives: Patients are allowed to pool resources to manufacture marijuana on a limited basis. Qualifying patients may combine their 15 plant limit in collective gardens. Gardens are limited to 45 plants for 3-10 patients. It appears that cooperatives above 10 patients may have multiple gardens. For example a 20 person cooperative could have two 45 plant gardens. It is illegal for these cooperatives to provide marijuana to anyone outside the cooperative. The cooperative is limited to charging members for the reasonable costs of maintenance and production.

Can a patient use medical marijuana outside of the home?:  It is a misdemeanor to use or display medical marijuana in “view of the general public.” Employers, schools, correctional facilities, hospitals and the like are not required to provide areas for the use of medical marijuana. The safest answer seems to be to limit use to private homes. There may be an equal protection argument under the 14th Amendment as limiting the right to use one patients medicine in public while allowing all others to do so may be unconstitutional. As of yet, this issue is undecided in Washington.

2011 Update: The open display or use of medical marijuana will be a civil infraction instead of a jail able offense as of July 22, 2011.

What protection does the medical marijuana law actually give a patient or care provider?: Under RCW 69.51A.040 any “qualifying patients” engaged in the medical use of marijuana, or any “designated providers” are entitled to an affirmative defense if charged with a violation of state law relating to marijuana. The burden is on the individual to show proof of his or her compliance with the relevant requirements.

A qualifying adult patient or a designated provider must show he or she:

(a) Meets all criteria for status as a qualifying patient or designated provider;
(b) Possess no more marijuana than is necessary for the patient’s personal, medical use, not exceeding the amount necessary for a sixty-day supply; and
(c) Present his or her valid documentation to any law enforcement official who questions the patient or provider regarding his or her medical use of marijuana.
2011 Update: The law as originally written excluded the use of this affirmative defense if the patient did not present their medical marijuana card at the time of arrest. Beginning in July, 2011 a patient will still be allowed to assert a medical marijuana defense if he or she can establish by a preponderance of the evidence that he or she was a validly authorized patient or provider at the time of the incident.

A qualifying juvenile patient must shall demonstrate compliance with requirements above, except that “any possession under subsection (3)(b) of this section, as well as any production, acquisition, and decision as to dosage and frequency of use, shall be the responsibility of the parent or legal guardian of the qualifying patient.”

Forfeitures and Seizures: Routine practice in most counties even when the individual possesses and displays all of the required documents. While law enforcement are not required to seize any more marijuana than is necessary for testing they often do. To make matters worse law enforcement agencies often seize property and assets of the accused in forfeiture proceedings. Medical Marijuana patients are often left defending themselves against criminal charges.

Federal Law: The possession, transportation, distribution or cultivation of marijuana are illegal under federal law. Thus, the medical marijuana law only shields individuals from conviction in State courts. In October, 2009, Deputy U.S. Attorney General David Ogden issued a directive to U.S. attorneys regarding medical marijuana. The memo directs U.S. attorneys to use discretion when prosecuting marijuana cases and to avoid the prosecution of legitimate use of medical marijuana under state law. The memo is clear in pointing out that marijuana possession and distribution is still a federal crime and district attorneys should not ignore other criminal activity related to marijuana. In 2010 the Feds seemed to shift gears in informing Arizona, Washington, Montana and several other states that state workers who violate federal marijuana laws may face prosecution.

What are some helpful resources where I can find more information?: Seattle attorney and drug search and seizure guru Jeff Steinborn has created the website potbust.org. The site contains useful links and great advice for the medical marijuana (or recreational user). You might also check out www.medmj-wa.com and the Washington State Dept. of Health websites.

What is likely to happen if an individual is arrested in for a marijuana charge in Snohomish County?: For misdemeanor cases “people without substantial criminal history, this office will generally agree that if the defendant can prove successful completion of alcohol/drug information school, this office will consider dismissing the case.”

Plea offers to misdemeanors will be offered for:

1. Possession of less than 100 grams (dry weight) of marijuana, including leaf and stems, or fewer than 12 plants, even if there is evidence of intent to deliver.
2. Possession of 100 to 250 grams (dry weight) of marijuana, including leaf and stems when there is insufficient reliable evidence of dealing

What else is new in 2011?: The language of RCW 69.51.005 has been changed from patients, providers and health care professionals “shall not be found guilty of a crime under state law for their possession and limited use of marijuana” to “shall not be arrested, prosecuted or subject to other criminal sanctions or civil consequences under state law” based solely on the medical use of marijuana or the assistance thereof.

Additional requirements for health care providers to follow prior to the issuance of a prescription were added. The health care professional must establish conduct a physical examination of the patient and fully document any qualifying conditions.

Patients and designated providers were also afforded some additional protection and cannot be excluded from receiving a transplant or from residential time with their children based solely on the use of medical marijuana.

Insurance companies may, but are not required to, offer medical marijuana as a covered treatment option.

The University of Washington and Washington State University have been given authorization under the statute to conduct research related to the use of medical marijuana for treatment purposes.

No protection for probation violators: The legislature has clarified that the medical marijuana affirmative defense may not be asserted as a defense to a violation in a review hearing where the terms of probation strictly prohibit the use of marijuana.