Until now, medical cannabis patients in Washington have felt uneasy of the so-called “legal protections” that have been in place to protect them from arrest and prosecution. Well over a decade ago the voters approved the medical use of cannabis for certain conditions. Some of the first patients were arrested, charged, and prosecuted for the cultivation and use of their medicine. There was not much protection back then and patients had what is called an Affirmative Defense, which is not an exemption of the law but rather an acceptable excuse to go break the laws. This means that a patient, oftentimes very sick and in many cases terminal, would be handcuffed, put in jail and await trial before proving their innocence.
Fast-forward to 2011 when the legislature in the 62nd session drafted and approved ESSB 5073, which expanded certain rights as well as attempted to further protect patients. This was a necessary step as a large number of patients faced raids, arrest, and seized property and, thereafter, let the prosecutors figure out the legality. Within a section of the bill there was a registry that allowed patients to voluntarily sign up on a “protected” list. Those that opted to be part of the registry would not be subject to arrest, prosecution, criminal sanctions, or civil consequences. The only issue with this is that Governor Gregiore vetoed the section of the registry because she believed state employees were subject to prosecution based on the conflict between state and federal law. This left prosecutors and defense attorneys on opposite sides of theory. The defense theory argued that the legislatures intent was to protect patients and the protection from arrest and prosecution should stand regardless of the lack of registry. Others believed that since there was no registry, the protections laid out were, in essence, dead in the water. To this day patients have been arrested by state agencies while in compliance with the law based on this side of the theory.
On September 19th, 2013, in a 5-4 decision the Washington State Supreme court decided State v. Kurtz. When Kurtz was originally tried he was using medical cannabis for his condition. Unfortunately the fact that he was bound to a wheelchair and in pain every day of his life was not enough to overcome the fact that he had not obtained an authorization for his doctor to use medical cannabis. The attorney of record attempted to utilize a common law defense known as Medical Necessity. Kurtz was denied the use of the defense and he was convicted of manufacturing and possession of cannabis. The case was appealed and eventually went to the highest court in the state.
The Supreme Court agreed that the courts should have let Kurtz and his counsel assert the Medical Necessity defense and remanded it back down for a new trial. The court held that persons suffering from debilitating conditions do have an affirmative defense in trial even though they have not yet obtained an authorization from a qualifying physician. This means that the conditions set out by the department of health are not the only conditions that cannabis can used to treat. This also put into question the limits for plants and useable cannabis set out by the law. People that now suffer from PTSD have the same affirmative defense as cancer patients in court, if successful in asserting the Medical Necessity defense.
The larger, and previously unsettled, discussion in the case was also clarified. It affirmed what defense attorneys have believed for some time. The justices agreed that medical cannabis use is lawful. This is much more than affirmative defense. This passing statement by the Supreme Court allows the defense to assert that medical cannabis use is a complete defense and is legal.
Now, arguably, patients “may not be arrested, prosecuted, or subject to other criminal sanctions or civil consequences, for possession, manufacture, or delivery of, or for possession with intent to manufacture or deliver, cannabis under state law, or have real or personal property seized or forfeited for possession, manufacture, or delivery of, or for possession with intent to manufacture or deliver, cannabis under state law” regardless of the, now dead, registry. For the first time since 1998 medical cannabis patients may feel at least a little safer when it comes to using the medicine that helps them. While the courts decision is promising we have yet to see it in action. Hopefully, in the near future, patients will feel completely safe for using a harmless plant to ease their pain, reduce their seizures, help survive cancer or just give them a better quality of life.