State Supreme Court: Medical necessity OK reason for pot

SEATTLE — 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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