Medical pot rules leave patients, prosecutors with questions

Turns out growing marijuana plants indoors under artificial light without soil may be easier than sorting out the state law that allows sick people to use the stuff.

Since Washington voters passed the medical-marijuana law in 1998, patients have been frustrated over how to get marijuana and abide by the rules. Police officers must juggle how to leave authorized patients to their bongs and brownies without letting drug dealers walk.

The legal haze played out in the criminal trial of a medical-marijuana patient in Snohomish County earlier this month.

A former Bothell woman denied allegations she was a drug dealer. The 24-year-old claimed she was an authorized patient growing marijuana for medical treatment.

A Snohomish County jury waded through math problems and gardening lessons trying to find justice.

During three days of testimony, a witness at one point used paper cups in an attempt to illustrate the marijuana gardening cycle. Lawyers argued over whether a plant without roots should count as part of a patient’s 60-day supply. The judge questioned which parts of a marijuana plant are usable.

Meanwhile, jurors wrestled with a law that says patients can use marijuana as medicine but offers no guidance for buying it legally.

The jury acquitted the Bothell woman in under three hours. They were convinced her pot was for medical purposes, not back-alley deals.

“Fortunately, these are infrequently going to trial, but I’m not surprised there is confusion,” said Alison Holcomb, the drug policy director for the state’s chapter of the American Civil Liberties Union.

Qualified patients can possess a 60-day supply of medical marijuana. They need a doctor’s note and an identifiable medical condition, such as cancer or multiple sclerosis. They also need proof that common treatments have failed in their case.

The law doesn’t say how patients are supposed to acquire marijuana. It also is silent on how much pot constitutes a reasonable 60-day supply.

Legislators tried to offer some clarity in 2007 when they asked the state Department of Health to provide a guideline for a 60-day supply. Health officials arrived at 24 ounces of usable marijuana — that’s 1.5 pounds — plus no more than 15 plants, at any stage of growth.

But those limits still are just guidelines and not part of the statute, said attorney Natalie Tarantino of the Snohomish County Public Defender’s Association. She represented the Bothell woman in the medical marijuana trial.

“I think the law is murkier than most,” Tarantino said.

If a case gets to court, a judge or jury will be the ones who decide how much marijuana a person needs to treat their ailments, said Snohomish County deputy prosecutor Matthew Baldock.

Every medical marijuana user is different, and most of the cases never make it to trial. The Bothell case was the first in Snohomish County since the law was enacted.

Prosecutors and police aren’t interested in arresting and prosecuting sick people who are trying to follow the law, Baldock said. But as long as it’s illegal to use, possess and distribute marijuana, these cases are going to be investigated, he said.

That’s why more needs to be done to protect authorized patients and providers, Holcomb said.

The law doesn’t decriminalize marijuana. It only allows patients an affirmative defense at trial. They still must prove they are a patient with a doctor’s permission.

“We don’t think that’s what Washington voters intended when they passed the law,” Holcomb said.

The ACLU would like to see authorized patients free from prosecution. Medical marijuana patients shouldn’t be arrested for marijuana-related offenses, Holcomb said.

Lawmakers also need to tackle how patients get medical marijuana, she said.

Patients must grow their own, designate a grower who can only provide for one person, or buy it illegally. They also must be able to prove to the doctor that pot helps their symptoms.

That means a person must illegally experiment with marijuana first, Tarantino said.

“Does that mean we’re sending grandma with glaucoma out on the street to buy marijuana?” she asked.

That can be worrisome for doctors. By discussing the benefits of marijuana, physicians can be opening their patients up to legal problems.

Dr. Gil Mobley attended the Snohomish County trial to get a sense of how these cases are being prosecuted. Mobley, who runs a medical office in Missouri, plans to open a Seattle clinic specializing in marijuana treatment. He’s concerned some doctors are rubber-stamping authorizations and leaving patients vulnerable to prosecution.

Mobley also is worried that some are using medical marijuana as leverage for legalization. That’s misguided, he said: Medicine isn’t for recreation.

“I don’t think pot should be available to everyone,” Mobley said. “I can’t be in favor of it without regulations.”

On the other hand, patients who have found relief with marijuana shouldn’t live in fear of criminal prosecution, he said.

Police also say there are inherent dangers in growing marijuana. Fires break out as growers pack small rooms with lights, fans and filters. Patients also may be at risk of home-invasion robberies.

“We tell people to be careful,” said Baldock, who works with the drug task force. He prosecuted a double murder in Everett where the couple tending an indoor pot farm were shot to death during an attempted robbery.

Holcomb said much of the confusion, frustration and fear could be cleared up if the state gave the green light to controlled and regulated dispensaries.

Dispensaries, particularly in California, have drawn criticism from some lawmakers, police and neighbors. Some of the hundreds of shops sprouting up are merely fronts for illegal drug operations and havens for crimes, they complain.

Holcomb pointed to New Mexico, where the state licenses nonprofit growers to provide marijuana to qualified medical patients.

“Patients need somewhere safe to obtain quality medical marijuana and a consistent supply so they don’t have to go to the black market,” she said.

King County Prosecutor Dan Satterburg in 2008 said his office would be looking “with a very lenient eye” toward medical marijuana patients, including those operating cooperative gardens and sharing with other authorized patients.

A similar directive hasn’t cropped up here. Snohomish County Prosecutor Mark Roe said that for years the office has considered small-quantity marijuana possession cases a low priority. Still, the law is the law.

“When our laws change on marijuana, our efforts to enforce them will change,” Roe said.

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