Pubdate: Fri, 20 Sep 2013
Source: Seattle Times (WA)
Copyright: 2013 The Seattle Times Company
Contact:  http://seattletimes.nwsource.com/
Details: http://www.mapinc.org/media/409
Author: Gene Johnson, The Associated Press

MEDICAL-USE ARGUMENT FOR POT RULED OK

State's High Court

Justices Give Their Opinion on People Busted for Marijuana

(AP) - People busted for marijuana can argue they needed it for 
medical reasons, even if they failed to follow the requirements of 
the state's medical-marijuana law, the Washington Supreme Court said Thursday.

In a 5-4 opinion hailed by advocates of patients who use pot, the 
justices said voters did not get rid of the "medical-necessity 
defense" when they passed the medical-marijuana law in 1998.

The ruling means that people who don't have the money or insurance to 
see a doctor to authorize them to use marijuana, or who don't have a 
doctor in their community who will authorize them to use marijuana, 
will nevertheless be able to argue in court that they had a medical 
reason for using it, said Seattle lawyer Suzanne Lee Elliott, who 
handled the case.

The state medical-marijuana law allows people to use pot for certain 
debilitating medical conditions, such as cancer, AIDS or intractable 
pain, and it allows them to have far more of the drug than the ounce 
adults are allowed to possess under Washington's 
recreational-marijuana law, approved last year. People are required 
to obtain an authorization to use marijuana from an appropriate 
health-care professional before they can avail themselves of the medical law.

Justice Barbara Madsen wrote for the majority that people who fail to 
follow the medical law can nevertheless argue in court that they 
needed the marijuana for medical reasons, but in order to do so, they 
must also show that complying with the medical-marijuana law was not 
a viable alternative for them.

That is frequently the case with people who use pot to treat 
conditions that aren't covered by the medical-marijuana law, such as 
insomnia, said Seattle marijuana defense attorney Douglas Hiatt. If 
prosecuted, they'll be able to make a case at trial that they needed 
the pot for their condition.

"This is the most important ruling for the rights of 
medical-marijuana patients that has happened in a long time," Hiatt said.

The state Court of Appeals first recognized a "medical necessity" 
defense to marijuana charges in a 1979 case involving a man who said 
he used it to treat multiple sclerosis. In general, necessity 
defenses allow defendants to claim that they needed to break the law 
to avoid a more serious harm, and because there was no legal means of 
avoiding that harm.

Writing in dissent, Justice Susan Owens said medical-marijuana 
patients do have a means of using marijuana legally: They can comply 
with the state medical law. Thus, she said, they don't need a 
medical-necessity defense, which she argued was overridden by the 
medical marijuana law in 1998.

"Because individuals in this state have a legal way of using medical 
marijuana, the previously articulated common law defense of medical 
necessity for marijuana use is no longer appropriate," Owens wrote.

The ruling came in the case of William Kurtz, an Olympia man who 
suffers from hereditary spastic paraplegia. He did not have an 
authorization from a doctor when police came to his door in 2010.

He was charged with growing and possessing marijuana, and the trial 
court judge barred him from presenting a medical-necessity defense.
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