OLYMPIA – A voter-approved initiative allowing doctors to recommend medicinal marijuana does not apply to cases where the doctor is licensed outside of the state of Washington, the state Supreme Court ruled Wednesday.
“The initiative could have, but did not, define a qualifying doctor as one with a valid license from any state,” Justice Tom Chambers wrote in the 6-3 majority decision.
Initiative 692 passed in 1998 with 59 percent of the vote. It gives doctors the right to recommend – but not prescribe – marijuana for people suffering from cancer, AIDS, multiple sclerosis, glaucoma and other conditions that cause “intractable pain.”
Marijuana is still illegal to buy and sell. It’s listed in the same class of drugs as heroin and LSD. Possession of pot is allowed under I-692, but state law does not say how people can obtain it in the first place.
In its decision, the high court affirmed a Court of Appeals ruling that upheld the conviction of Sharon Tracy, who had been charged with possession and manufacture of marijuana.
Tracy suffers from a hip deformity and migraine headaches, and has had a series of corrective surgeries following a ruptured colon and bowel conditions, according to court records.
She was arrested in May 2003 after police arrived at her home to investigate a domestic violence complaint. While there, police smelled marijuana and after returning with a search warrant, found just over an ounce of marijuana, four marijuana plants, and a California medical marijuana card.
A few months after the arrest, she obtained another medical card from a doctor in Portland, Ore., the closest large city across the border from her home in Stevenson, Wash.
The judge at her trial in Skamania County would not let her use the compassionate-use defense allowed under I-692, because she was not found to be a “qualified” candidate because the card in her possession at the time of her arrest was not issued by a doctor who was formally licensed to practice medicine in Washington state.
The trial court entered a finding that the authorization received by the Oregon doctor met Washington’s requirements, but it was not able to be used in court because the card was received after her arrest, Tracy’s attorney said.
Peter Banks, the prosecuting attorney for Skamania County, said the language in the initiative was clear.
“The factual situation was such that she was neither a qualifying patient nor was the card issued by a qualified doctor in the state of Washington,” he said.
Tracy, 53, has been living in Hayward, Calif., since 2004 to care for her elderly mother.
David Schultz, Tracy’s attorney, said that at the time of her arrest, she was traveling back and forth between the two states because of her family situation, which is why she got the card from California in the first place.
She said that some of her health problems had to do with the pain medication she had been on for years, which is why the doctor switched her to medicinal marijuana.
“Had the California doctor prescribed her Vicodin and Soma or anything like that, the prescription would have been legal. She could have filled it at any Washington pharmacy,” said David Schultz, Tracy’s attorney. “I have a lot of trouble seeing the difference, especially in light of what the initiative stands for.”
Schultz said his client, who had not served any jail time pending the appeal, now faces up to 90 days in jail. He said he hasn’t yet decided whether to appeal the case to the U.S. Supreme Court, but said Tracy should not be in jail.
“Her health condition is worsening,” he said.
Tracy said that she’s had some recent heart conditions and has a pacemaker, and the thought of having to go to jail, “makes me very, very sad, and very scared.”
Dr. Rob Killian, a Seattle physician who sponsored I-692, said he was disappointed by the ruling.
“One would have hoped that the intent of the law, which was to protect valid patients from prosecution, would have trumped the logistics or the letter of the law,” he said.
In his dissent, Justice Jim Johnson agreed.
The “majority decision deprives Sharon Tracy of the protections afforded by the people through this legislation, and allows her to be convicted of a crime for exercising that privilege,” Johnson wrote, joined by Justices Richard Sanders and Barbara Madsen.
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