Tipping the Scales for Lady Justice






            The Washington State medical marijuana law, codified at RCW 69.51A now over a decade old, remains ill defined and difficult to comply with.  This compassionate initiative has not enjoyed the broad reading and liberal interpretation in Washington's courts that it should have. Instead, hostile law enforcement and an ultra conservative judiciary attempted to strangle the law in its infancy with cases like the now questioned Shepherd decision.  Many doctors are unwilling to sign for patients and do not want to take any risk that they will be contacted by the DEA or the state medical board, as have many California doctors and some Washington doctors.

All of these factors and more make it difficult for patients seeking relief from illnesses treatable with marijuana, or cannabis, as it is called medically.

Washington's law is more restrictive than California's law in that it has specific conditions or diseases for which marijuana is approved.  There is a provision to add illnesses as data supports the effectiveness of marijuana for the specific disease. Hepatitis C and Crohn's disease were added to Washington's law and there are other petitions in the works for various illnesses not now covered.  The specific illnesses are listed at 69.51a 010(4).

            The first step in becoming a medical marijuana patient is to talk to your doctor if you believe that you have a condition treatable with marijuana. Your doctor may not want to discuss this with you and you may have to ask for a referral to another doctor.  Medical marijuana clinics exist where you can also bring medical records and seek a doctor’s opinion as to whether you have a qualifying condition or not.  Some of these are non profit organizations and some are not. The most important thing is that the doctor be willing to back you up if it is necessary to go to court or to interact with law enforcement.

            The law then allows a qualified patient to grow as much marijuana as needed for a sixty day supply.  The law also allows one caregiver per patient to grow for a patient.  The department of health established unrealistic and politically motivated suggested guideline limits of fifteen plants per patient and 24 ounces of usable marijuana. These are guidelines at which law enforcement is supposed to leave you alone, in reality, because the law is an affirmative defense, they can arrest you at any time and make you prove everything in court. If you need to grow more plants and are an "eater" it is especially important to have the support of a doctor who can explain your medical use needs.  The law doesn’t require it, but if you are growing or possessing a questionable amount, it’s best to work out the details of how you calculate your 60 day supply and have it posted or stored next to your authorization. 

            This is the general outline of the law.  It is a fact that law enforcement is suspicious at best and outright hostile to medical marijuana. Many departments are just now recognizing the validity of the law and beginning to establish police guidelines.

            In King County, elected county prosecutor Dan Satterberg has established guidelines, available online at the Seattle Times website, that give guidance to patients about what is to be expected.  These are brilliant and very workable guidelines which admit the existence of group growing as a necessity for medical patients.  Most medical patients cannot follow the letter of the law and must join collectives that are closed groups of patients banding together to produce medicine at lower cost and without the dangers of street access of an uncontrolled market bent on profit.

            The legal theory behind the collectives and co-ops is simple: if patients can grow separately, then they can grow together.  There are no caregivers, it is all patients and the caregivers might just help or pickup medicine.  This allows for the scenario where a 65 year old woman gets a breast cancer diagnosis and must start chemo in a week.  She has to be allowed to join a collective and access medicine. She cannot take up gardening and wait six weeks.  This is how the vast majority of medical marijuana patients obtain medical marijuana in Washington State.

              Dispensaries, that are open to the public, California style, are not permitted in Washington and they are really not allowed in California either, as the current crackdown shows. The law in California requires non profits to be the only valid way to dispense and to be collectives, not walk in stores. Dispensaries are viewed as glorified drug dealing and prices are way too high for medical users who must access larger amounts of the drug than recreational users in Washington State there is no tolerance for dispensaries.


          The Washington State Department of Corrections has taken the position that anyone on supervision cannot use medical marijuana. We are attempting to fight this and urge anyone affected to contact our office for possible inclusion in a class suit to end this discriminatory and illegal policy.

The Washington courts have yet to rule on workplace issues but California's Supreme Court ruled in Ross v. RagingWire that there is no protection for employees and we believe Washington courts will rule the same. A defense to a criminal charge is not the same as a workplace protection issue. Manufacturers attempted to remove all protections for Oregon workers in the legislature last year.  Large anti-union employers groups are also fighting medical marijuana and trying to drive patients out of work.  This must be fought.

             Medical marijuana patients who are parents need to be advised that a Washington appeals court has taken into consideration a parent’s medical use in a divorce child custody matter.  It was considered a factor weighing against unsupervised visitation.  Parents who are patients need to be extremely careful with issues surrounding the children and medical marijuana, and need to be aware there are risks if you run into the wrong CPS workers.

Douglas Hiatt can be reached at (206) 622-5117

More info at http://www.douglashiatt.com