Of the states that passed medical marijuana initiatives in 1998, Washington was the only one not to place a numerical limit on the amount of marijuana that may be possessed or grown by a patient. Instead, the law allows patients to possess no more than a "sixty day supply." Because the law does not designate any state agency to implement or oversee the law, Washington has no formal system for identifying patients, and there has been no clarification of a "sixty day supply."
Patient advocates estimate that at least 5,000 medical marijuana patients are utilizing the state law. However, there could be as many as 17,000 to 18,000 patients statewide, based on Oregon's mandatory registration system (which shows approximately 0.3% of the entire population using medical marijuana). Most patients grow their own medical marijuana, either alone or with the help of a caregiver. To assist those patients who cannot grow marijuana, a handful of patient cooperatives exist to verify patients' credentials, distribute marijuana, and provide related services. They do not, however, meet the state's strict definition of a caregiver.
As a result, patient cooperatives have faced the threat of prosecution. The Green Cross Patient Co-op, located in West Seattle, stopped distributing medical marijuana after it received a "cease and desist" letter from the Seattle Police Department on July 27, 2001. Although Green Cross, which served about 1,500 patients, had been operating out of a Highland Park residence for years with the knowledge of many in the community, police asked it to shut down after receiving complaints from some neighbors. It continues to provide some services, but patients are now referred elsewhere to obtain medical marijuana. Although police and prosecutors contend that Green Cross broke the law by serving multiple patients, the law enforcement community consciously worked to avoid dragging patients and their caregivers into court.
Supply — exactly how much patients and their caregivers may legally possess — remains the chief issue surrounding the law. In State v. Shepard in 2002, a Washington state appellate court determined that caregivers must prove at trial that the amount of marijuana they grow or possess does not exceed a "sixty day supply" for the patients they serve and suggested that physicians should determine how much a patient needs. The defendant in the case grew only 15 plants, but he did not prove at trial that he was growing only an amount that met the "sixty day supply" requirement of the patient he served.
"While nothing in the act requires doctors to disclose the patient's particular illness, there must, nonetheless, be some statement as to how much he or she needs," wrote Judge Dennis Sweeney for the court.6
Frank Cikutovich, defense counsel in the case, worries that doctors may be reluctant to accept any greater role in the law's administration for fear of federal reprisals. The state appealed the decision to the Washington Supreme Court, which denied the appeal in October 2002. Subsequent cases have touched on the subject but have added little clarity to the issue.
There have been attempts in the state legislature to clarify what constitutes a "sixty day supply" of medical marijuana, but none of the bills were able to clear the legislature. S.B. 5704 and S.B. 5176, considered in 1999-2000 and 2001-2002, respectively, would have authorized the state Department of Health to adopt administrative rules to implement the medical marijuana law. Although these bills had strong support in the Senate, neither had the force to get through the House. In 2003, Sen. Jeanne Kohl-Welles (D-Seattle) sponsored a similar bill in the Senate for the third consecutive session. S.S.B. (Senate Substitute Bill) 5947, which would have allowed for clarifications and rules to implement the medical marijuana law, did not make it out of the Rules Committee.
6 "Appeals court backs strict reading of medical marijuana law," Seattle Post-Intelligencer, March 13, 2002.
In the absence of additional rules, local law enforcement has taken steps to limit the scope of the law. The Seattle Police Department, for example, developed directives to streamline how medical marijuana investigations are conducted. Attempting to address the supply issue, Seattle police consider "suspicious" the possession of more than two usable ounces of marijuana and more than nine marijuana plants (three mature, three immature, and three starter plants). However, this is only a benchmark and not an absolute standard; each case is reviewed on an individual basis. The Seattle police also obtained advice from the U.S. Attorney for Western Washington, who said the police would not face any federal penalties for following the state's medical marijuana law in good faith.
Not only do police lack clear guidance regarding what constitutes an appropriate supply, they also complain that it is difficult to determine what is an appropriate doctor's recommendation. Although the law defines "valid documentation" more clearly than it defines supply, law enforcement claims that it must guess at both issues. As a result, enforcement practices vary throughout the state, and several patients have been arrested or have had their marijuana seized because police and patients have differing interpretations of the law.
To assist patients, the Washington Department of Health provides a toll-free phone number (800525-0127), where patients can obtain information about the law, and distributes copies of the statute, a fact sheet on the law, and a guide to the law (produced by Washington Citizens for Medical Rights and the ACLU), which includes a physician's recommendation form developed by the Washington State Medical Association.
Patients who contact the Department of Health most often ask about how they can obtain marijuana, if they can be referred to a physician, and what their status is under federal law. The department does not refer patients to physicians who can provide recommendations, nor does it refer them to patient networks that can provide medical marijuana. With no formal role in the administration of the law, the department's primary advice for patients is to read the law carefully.
The only state agency with any administrative authority over the law is the Medical Quality Assurance Commission. It can expand the list of terminal or debilitating conditions that may be treated with marijuana under state law. During the law's first two years of effectiveness, the commission added Crohn's disease and hepatitis C, as well as diseases that have specific symptoms like nausea, vomiting, wasting, appetite loss, cramping, seizures, muscle spasms, and spasticity, when these symptoms are unrelieved by standard treatments. The commission has rejected the inclusion of insomnia, posttraumatic stress disorder, depression, and severe anxiety. However, according to Dr. Rob Killian, who has frequently petitioned the commission, Washington has carefully listened to patients' needs and has done more than any state to expand the range of conditions that may be treated with medical marijuana.
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