Medical Marijuana - Drastic Changes Coming
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: