Medical Marijuana: Legal Considerations
With the passage of Initiative 692, the medical marijuana law, you may be thinking of growing your own marijuana. Authored by Dr. Rob Killian, I-692 allows for the use of medical marijuana and was passed by the voters of Washington State in 1998. However, as with many initiatives, it has many problems.
The most significant is that it amends only state law, not federal law. It is still against federal law to obtain, possess, or cultivate marijuana for any purpose. Physicians are not legally allowed to prescribe marijuana under federal law. Additionally, there are several federal criminal statutes dealing with the sale and transport of marijuana, that are not affected by I-692.
I-692 does not legalize the medical use of marijuana; rather it provides a possible legal defense (an affirmative defense) for people charged with possession of marijuana under Washington state law. This may sound like a legal technicality, but it is much more than that. It is analogous to the legal defense of justifiable homicide, whereby the state does not legalize killing in self-defense, but rather allows the use of self-defense as a defense to a charge of homicide. The significance is that normally when the state charges someone with a crime, the state bears the burden of proof, whereas with a legal defense, the person raising the defense bears the burden of proof. In close cases, the outcome may be determined by who bears the burden of proof, and whether they have met that burden.
I-692 does not allow physicians (whether MD or doctor of osteopathy) to prescribe marijuana, but rather allows people who have a doctor's note that states that they have a condition that may benefit from the use of marijuana an affirmative defense to possession of marijuana. The law defines valid documentation as a statement signed by the qualifying patient's physician, or a copy of the patient's pertinent medical records, stating that in the physician's professional opinion, the potential benefits of the medical use of marijuana would outweigh the health risks for a qualifying patient.
The state cannot change the federal law that prevents the prescribing of marijuana. It is prohibited under federal law to knowingly or intentionally distribute, dispense, or possess marijuana. The terms "distribute" and "dispense" have been broadly interpreted, and physicians may be found in violation of federal law for writing a prescription for marijuana, for which federal law has no recognized medical use. Many physicians are worried that federal law enforcement agencies may attempt to prosecute them and take away their licenses if the write such letters, arguing that they are in effect prescribing marijuana. I-692 does not require physicians to write such letters.
The Washington State Medical Quality Assurance Commission may approve other conditions, under I-692.
The amount of marijuana you are allowed to possess is a 60-day supply, and I-692 does not further define what a 60-day supply is. Also, if a person cannot grow their own marijuana, they are allowed to have a designated grower, but a designated grower may only grow enough marijuana for one person.
While I-692 "legalizes the medical use of marijuana," many concerns remain about the illegality of the sale and transport of marijuana under federal law, the amount of marijuana considered to be a 60-day supply, and the potential for federal action against physicians.
This article was provided by Seattle Treatment Education Project. It is a part of the publication STEP Perspective.