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The Washington Medical Use of Marijuana Act

Guide for Patients, Caregivers, Physicians, Law Enforcement, and the Public

Washington State voters passed the Medical Use of Marijuana Act in 1998 as a ballot initiative (I-692).   Before beginning treatment, it is extremely important that patients, caregivers, and physicians take time to understand the Medical Use of Marijuana Act, which is codified in Chapter 69.51A of the Revised Code of Washington.  The information here provides a general explanation of the law.  For legal advice on how the law applies or does not apply to you personally, you should speak with an attorney who is familiar with this law. 

What does the Medical Use of Marijuana Act do?

Washington State's medical marijuana law protects qualifying patients and their caregivers from being punished in state courts for growing, possessing, and using marijuana.  The law also clarifies that doctors may discuss medical marijuana as a treatment option with their patients.

Passage of I-692 did not, however, change federal marijuana laws.  This law does not legalize marijuana for recreational use – or any other use of marijuana that is not specifically covered by the law.  The law applies to only the medical conditions listed in the statute and others approved by the Washington State Medical Quality Assurance Commission after I-692 passed in 1998 (see below). All other uses of marijuana are still illegal.

While the law does protect covered patients and caregivers from conviction, it does not technically protect them from arrest or prosecution.  However, police and prosecutors usually hesitate to arrest or charge patients and caregivers who are clearly complying with its legal requirements.

Who is a protected “qualifying patient”?

Washington's law protects some people who suffer from specified terminal or debilitating medical conditions. To be protected by the law, a person must be a patient of a physician who is licensed to practice in Washington State.  The patient must be a resident of Washington State at the time he or she is diagnosed by that physician with a covered illness.  The patient must be advised by the physician (1) about the “risks and benefits” of medical marijuana and (2) advised that he or she “may benefit from the medical use of marijuana.”

The medical marijuana law does not cover all terminal or debilitating medical conditions – only those illnesses and categories of illnesses listed in the statute or approved by the Medical Quality Assurance Commission (MQAC).  The law itself lists:

(a) Cancer, human immunodeficiency virus (HIV), multiple sclerosis, epilepsy or other seizure disorder, or spasticity disorders; or

(b) Intractable pain, limited for the purpose of this chapter to mean pain unrelieved by standard medical treatments and medications; or

(c) Glaucoma, either acute or chronic, limited for the purpose of this chapter to mean increased intraocular pressure unrelieved by standard treatments and medications; or

(d) 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).   The public may petition the Medical Quality Assurance Commission to add other terminal or debilitating conditions to the list.  Since I-692 passed, the MQAC has added:

1.      Crohn's Disease with debilitating symptoms unrelieved by standard treatments or medications;

2.      Hepatitis C with debilitating nausea and/or intractable pain unrelieved by standard treatments or medications; and

3.      Any disease, including anorexia, which produces nausea, vomiting, wasting, appetite loss, cramping, seizures, muscle spasms, and/or spasticity, when these symptoms are unrelieved by standard treatments or medications.

Patients who meet all of these requirements must also have proof of their identity, such as a Washington state driver's license or identicard, and “valid documentation” of their physician's recommendation and show it to any law enforcement officer who questions the patient regarding his or her use of medical marijuana.  Valid documentation can be either (1) a statement signed by the physician or (2) a copy of the qualifying patient's pertinent medical records.  The physician's statement or patient's medical records must say 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.[1] 

Who is a protected "primary caregiver"?

 Some qualifying patients need help obtaining, storing, and using their medication, so the law allows them to designate a “primary caregiver.”  This person must be at least 18 years old and be “responsible for the housing, health, or care of the patient.”  This is very broad because in some cases the only health-related tasks or “care” needed by the patient will be to grow or obtain medical-grade marijuana.  The purpose in allowing a patient to be assisted by a caregiver is to make sure that the patient has sufficient medication.

The patient must designate the caregiver in writing before the caregiver assumes responsibility for the patient's medication.  If requested by a law enforcement official, a primary caregiver must provide a copy of (1) the qualifying patient's valid documentation and (2) the evidence of designation to act as the patient's primary caregiver under the medical marijuana law.

The law allows a primary caregiver to assist “only one patient at any one time,” and a caregiver (who is not also a qualifying patient) may not personally consume marijuana obtained for the qualifying patient.

How much marijuana can qualifying patients and caregivers possess?

Qualifying patients are permitted to possess “no more marijuana than is necessary for the patient's personal, medical use, not exceeding the amount necessary for a sixty-day supply.”  RCW 69.51A.040(2)(b). 

Caregivers can possess, “in combination with and as an agent for the qualifying patient, no more marijuana than is necessary for the patient's personal, medical use, not exceeding the amount necessary for a sixty-day supply.”  RCW 69.51A.040(4)(b).

What constitutes a 60-day supply of marijuana?  The 60-day supply provisions are the single most confusing part of the law for everyone involved.  Qualifying patients and caregivers understandably want to ensure that the patient has enough medication available so that they do not have to purchase marijuana on the illegal market if the patient's plants fail to mature or her supply is depleted.  Police officers – who are trained to punish marijuana use – feel that it is their duty to make sure that even qualifying patients and their caregivers have no more marijuana than necessary.  The courts have had an equally difficult time explaining in a coherent way what the 60-day supply requirement means. 

Ultimately, a “60-day supply” means the amount a particular patient can reasonably expect to use over the course of 60 days.  Daily dosage will vary depending on the medical condition being treated and the severity of daily symptoms.  The potency of marijuana also varies.  Medication of sufficient potency will allow the patient to smoke or ingest smaller amounts of marijuana.  Low-grade medical marijuana can force the patient to use more to be effective.

Frequently, police and prosecutors have disagreed with patients and caregivers about the 60-day supply requirement, especially when patients are growing their own medical marijuana.  Police departments often focus on the number of plants that a patient or caregiver possesses, rather than the amount of usable marijuana that is readily available from those plants.  Under this law, patients and their caregivers may, combined, have up to the amount of marijuana that “is necessary for the patient's personal, medical use, not exceeding the amount necessary for a sixty-day supply.”  See RCW 69.51A.040(2)(b) and (4)(b).  Immature plants and unusable plant parts should not be included in this amount, because they cannot be used for the “the patient's personal, medical use.”

Here are two contrasting situations:

Example 1: Intending to ensure that some of the plants reach maturity and will be of medical grade, a caregiver might possess 50 immature seedlings with no usable medical marijuana.  That caregiver possesses 0-days supply of medical marijuana and therefore is in compliance with the medical marijuana law at that time.

Example 2:  Another caregiver possesses 4 large, mature (harvestable) female plants of medical-grade marijuana for a patient who uses a very small amount of medication each day.  It is possible that the usable marijuana that is available to the caregiver's patient is over the amount necessary for a 60-day supply.  If so, that caregiver is out of compliance with the law.

Patients and caregivers might wish to be conservative in their estimate of the patient's 60-day needs – and grow or possess no more than is clearly needed by the patient.  While Example 1 above might be true under the law, police officers could nevertheless decide to make an arrest.  Patients and caregivers will themselves have to make reasonable estimates of the patient's 60-day supply amount and be prepared to defend the reasonableness of their estimate in court.

The ACLU believes police and prosecutors, on the other hand, should be flexible in evaluating whether a patient or caregiver meets the 60-day supply limitation.  If a patient underestimates her 60-day needs, she or her caregiver may be forced to make up the difference by purchasing marijuana elsewhere.  It is not in the interest of law enforcement to drive patients to the illegal market.

How does the medical marijuana law protect physicians?

Washington law states that licensed physicians “shall not be penalized in any manner, or denied any right or privilege” for:

1) Advising patients about the risks and benefits of medical marijuana or

2) Providing a qualifying patient with valid documentation that “the potential benefits of the medical use of marijuana would likely outweigh the health risks for the particular qualifying patient.”

RCW 69.51A.030. 

Physicians are also protected from threats made by the federal Drug Enforcement Administration and other government agencies.  The federal Ninth Circuit Court of Appeals ruled, in Conant v. Walters, that the DEA may not punish doctors who recommend medical marijuana.  But physicians still cannot formally prescribe or provide marijuana to their patients – only patients and their caregivers may possess marijuana for the patient's medical use.

The United States Supreme Court refused to review this Ninth Circuit case on appeal, so it protects physicians in most states with medical marijuana laws, including Washington, California, Oregon, Alaska, Hawaii, Nevada, and Arizona.

How does the medical marijuana law affect other people?

No one can be punished “solely for being in the presence or vicinity” of medical marijuana or someone using medical marijuana. RCW 69.51A.050(2).  So long as they are not violating the medical marijuana law or committing some other crime, family members, friends, medical services providers, social workers, and anyone else may be around medical marijuana users without fear of prosecution.

The medical marijuana law only allows qualifying patients and their caregivers to possess medical marijuana – and only qualifying patients to use the marijuana.  The law does not allow anyone else to possess, deliver, or use marijuana for any purpose.

What are the limits of the medical marijuana law?

The Medical Use of Marijuana Act protects only the individuals described in the statute (see above).  Except for the assistance given by a designated caregiver to a qualifying patient, growing marijuana or giving marijuana to anyone is still a crime under Washington state law.  Even qualifying patients can be prosecuted for giving their medical marijuana to someone for whom they are not also the designated caregiver.

The medical marijuana law creates two new state criminal offenses and exceptions:

v      It is a misdemeanor to use or display medical marijuana “in a manner or place which is open to the view of the general public.”

v      It is a class C felony to fraudulently produce or alter any document or medical record for use as valid documentation.

 

And the law sets certain other limitations:

v      No health insurer can be forced to pay for medical use of marijuana.

v      Physicians are not required to authorize medical marijuana for a patient.

v      No “place of employment, in any school bus or on any school grounds, or in any youth center” can be forced to accommodate the use of medical marijuana.

v      The law does not protect 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.”  In other words, medical marijuana users cannot drive under the influence of their medication.

Federal marijuana offenses are not changed by any of the state medical marijuana laws.  Some local law enforcement officials who disagree with the medical marijuana law have threatened qualifying patients and their caregivers with “referrals” to federal authorities for prosecution in federal courts.  This practice might violate state and local officials' duty to uphold Washington's laws, including the Medical Use of Marijuana Act, but that has not yet been decided by a court.

[1] 110 Wn. App. 544 (Div. III 2003), required that this exact language be included in the patient's documentation.  We believe that this was an incorrect ruling.  However, until the Washington State Supreme Court considers this issue, physicians must use exactly those words in providing a statement or including a recommendation in the patient's medical records. The Washington State Medical Association provides a model form on the Internet at

http://www.wsma.org/memresources/med_form.html.



* Included with the permission of the ACLU of Washington.

To learn more from the ACLU of Washington about the War on Drugs:
http://www.aclu-wa.org/index.html

Patrick Stiley: pstiley@legaljoint.net | Frank Cikutovich: frankc@legaljoint.net |  webmaster@legaljoint.net
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