The state of Washington has always been on the forefront of change on the legalization of marijuana. There have been several changes to medical marijuana laws and interpretation of the laws in the last several months. The Washington State Supreme Court recently provided clarification on its interpretation of long standing law while the legislature has sought to modify and increase regulations on medical marijuana. Both actions will have broad effects on current and future medical marijuana users and distributors.
In 1998, the Washington legislature created an exception to the crime of possession of marijuana for patients and caregivers of patients who qualified for medical marijuana. Essentially this law allowed qualifying individuals to raise an affirmative defense that they qualified for medical marijuana use after they had been charged with a crime. While well intentioned, this law undoubtedly created issues with individuals being arrested; medical marijuana being seized; unnecessary costs associated with trial; and other problems for individuals who were legally using and/or possessing marijuana for medical purposes.
The law was amended in 2011 in an attempt to mitigate some of the issues that resulted from the 1998 law. The primary change was the establishment of a register of medical marijuana users for the purpose of providing some level of protection from the justice system as well as allowing police officers an easy way to confirm if someone truly was a medical marijuana user. In theory, a person could register as receiving medical marijuana to provide proof they were a legitimate recipient. For individuals who registered, the burden shifted to law enforcement to establish a person did not qualify for a medical marijuana possession exception. However, subsequent to the legislature proposing the law, the Department of Justice issued a letter indicating that it believed the proposal was contrary to federal law. It went on to warn a state maintained list of producers and cultivators could result in penalties to state officials who maintained the registry.
As a result of the threats from the federal government, then Governor Gregoire vetoed dozens of sections of the proposed law including sections establishing the registry which prevented the registry from every being created. This created an interesting result wherein some portions of the enacted law made reference to protections provided by a registry that was never brought into existence while other portions of the law referenced consequences for individuals who declined to be a part of the registry.
The case recently brought before the Washington State Supreme Court argued the law was ambiguous because portions of the law referenced a registry that was never created. In essence, the appellant argued possession of medical marijuana was not illegal based on the ambiguity in the law. The court held differently instead stating the law as enacted still provided only an affirmative defense to the possession of marijuana. Under this ruling, there appears to be no change in the original law enacted in 1998 despite the changes the legislature sought to bring into effect in 2011. It should also be noted that the case on appeal involved 210 ounces of marijuana, which is substantially over the 24 ounces of medical marijuana authorized by law.
The world of medical marijuana will soon be seeing a number of new changes as the result of a bill Governor Inslee signed off on in April 2015. The law sets forth a number of new requirements and seeks to more fully regulate medical marijuana producers, processers, retailers, and consumers. The bill, called the Cannabis Patient Protection Act, requires a great deal more government oversight including the creation of a retail registry and certification course for cannabis consultants. Prior to the enactment of the law, the medical marijuana industry was largely unregulated. The new law does have some benefits including adding post-traumatic stress disorder and closed head injuries to the list of qualifying conditions – two conditions that affect veterans at a disproportionate rate. For the most part, however, the law greatly reduces the freedom medical marijuana users are used to enjoying and vastly limits the amount of marijuana a home can possess. For example, previously a home is allowed to have cannabis plants for every person who is a medical marijuana user, but now housing units will be limited to 15 plants total regardless of the number of individuals who are medical marijuana users.
It is more important now than ever that medical marijuana consumers and producers consult with a knowledgeable attorney as the changes in the law could have very detrimental effects. More information on the new regulations can also be found on the Washington State Department of Health's website: