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WA Medical Marijuana Law Doesn't Protect Patients
Courts uphold possession arrests, even with a valid prescription
from the ACLU of WA
In a sharply divided decision, the Washington Supreme Court on January 21 ruled against a patient arrested for possessing marijuana despite his having a doctor’s recommendation for medicinal use of marijuana. The court found that police had probable cause to search his home, even after he presented what he and police believed to be a valid medical marijuana authorization form under the state’s medical marijuana law. Washington’s Medical Use of Marijuana Act was adopted by the state’s voters in 1998.
“This ruling is disappointing, as the citizens of Washington have clearly expressed support for the right of patients who are suffering to use marijuana for medicinal purposes. It is time for comprehensive legislative reforms that will protect patients who use marijuana to alleviate severe suffering,” said Alison Holcomb, ACLU of Washington Drug Policy Director.
Today’s ruling arose from the case of patient Jason Fry, a resident of Stevens County. In December 2004, sheriffs went to Fry’s home with suspicion that he was growing marijuana. Upon arrival, the sheriffs smelled marijuana, but were denied entry into the home after Mrs. Fry showed them her husband’s medical marijuana authorization form. The sheriffs then obtained a search warrant. After their searching, Mr. Fry was arrested and charged for marijuana possession.
A trial court did not allow him to raise the defense that he possessed marijuana under the state’s Medical Use of Marijuana Act. The court ruled that Fry was not a qualifying patient and found him guilty of possessing marijuana; an appeals court upheld the conviction.
“This ruling shows that police may search and arrest a patient even though he has his doctor’s authorization for the medical use of marijuana. As interpreted by the court, all Washington’s medical marijuana law provides is a defense patients can raise at trial – after having been subjected to the stress and stigma of arrest and criminal charges. Patients acting in good faith on their doctor’s advice should not have to fear arrest,” said the ACLU-WA’s Alison Holcomb.
Even after Fry was subjected to prosecution, the trial court refused to allow him to raise the medical marijuana defense because his doctor had mistakenly authorized the medical use of marijuana for a condition not listed in the law. In other words, the patient was punished for the doctor’s mistake. The court unfortunately did not address the issue of whether Fry should have been allowed to present the jury with a defense that he reasonably relied on his physician’s authorization for the use of medical marijuana.
The court was highly divided in its opinions, with only four justices signing the majority. In a concurring opinion, four justices asserted that patients should, in general, be able to present a medical marijuana defense at trial. Justice Sanders wrote a dissenting opinion.
The ACLU of Washington and the Washington Association of Criminal Defense Lawyers filed a friend-of-the-court brief in the case asserting that the police should not have been able to search Fry’s home and that he should have been allowed to use Washington’s medical marijuana law in his defense. The brief was written by the ACLU-WA’s Alison Holcomb, ACLU-WA cooperating attorneys Paul Lawrence and Matthew Segal of K & L Gates, and WACDL’s Suzanne Elliott.◆
Dr. Nathan, a psychiatrist in Princeton, N.J., is a clinical assistant professor at Robert Wood Johnson Medical School.