Friday, January 21, 2011

Medical Pot Debated - Olympia, WA

Published: 01/21/1112:05 am

The voter-approved medical-marijuana law has so many pitfalls for patients, even a couple of pillars of the Tacoma community see something to fear in it.

“Picture this: Local minister and deputy mayor arrested for having medical marijuana in their possession,” Lauren Walker said as she testified to state lawmakers Thursday on a proposed overhaul of the law.

Walker was describing her husband, the Rev. Marcus Walker, and herself, a Tacoma city councilwoman. Drawn into the strange world of medicinal cannabis just two weeks ago as part of her husband’s cancer treatment, she’s speaking up in Olympia in support of more protections from arrest for legitimate patients.

A proposal that would create those protections, and legalize the marijuana dispensaries that have cropped up in what advocates see as a gray area in the law, has broad bipartisan support in the state Senate.

But it could stumble on opposition that has been quietly building among key law enforcement officials. The Washington Association of Prosecuting Attorneys put forward an alternative proposal Thursday that seeks to avoid what Pierce County Prosecutor Mark Lindquist calls “the Starbucks approach” to the proliferation of medicinal marijuana.


Under the 1998 ballot measure, patients can grow marijuana for their own use or designate a provider to grow on their behalf, as long as providers only serve one patient at a time.

Entrepreneurs have interpreted that to mean they can serve one patient after another in retail-style dispensaries.

Enforcement of the law has been uneven. The Tacoma City Council in October decided to suspend the city’s attempt to shut down eight dispensaries until the Legislature could clarify the law.

The council is looking to a bill authored by Sen. Jeanne Kohl-Welles of Seattle, which would license dispensaries and producers. Alternatively, up to 25 patients could band together and grow up to 99 plants in a so-called collective garden.

Today, patients have a legal defense against prosecution, but advocates say that hasn’t stopped police from harassing and arresting legitimate patients. The bill would head off arrests in a couple of ways. It would set up a voluntary registry of patients that law enforcement could access. It would give arrest protection to patients with a valid order from a medical provider and up to 24 ounces of marijuana or 15 plants.

Patients would also get protections from discrimination in employment and housing.

Kohl-Welles said bringing regulation to medical marijuana would end an underground system that has encouraged criminal activity.

“We’ve had shootouts, we’ve had armed robbery, burglary. We can’t have that going on. We need a regulated system,” she said.


Lindquist agreed changes are needed but said the proposal takes the wrong approach.

“The bill as a whole seems to be more focused on creating a medical-marijuana industry than focused on providing medical marijuana,” he said. “We want to keep the focus on providing medical marijuana, because that’s what the voters passed.

Prosecutors joined in the call for a registry and are seeking more limited forms of collective growing and arrest protection.

But they don’t want dispensaries legalized. In their proposal, a designated provider would be banned from serving multiple patients in the same 15-day period, a rule that is also in Kohl-Welles’ bill but would not apply to dispensaries.

The Washington Association of Sheriffs and Police Chiefs supports the prosecutors’ proposal, Lindquist said. Association director Don Pierce didn’t return phone calls Thursday.

The opposition from law enforcement groups could be a major hurdle. But the bill also has strong support, at least from the health committee where it sits now.

Chairwoman Karen Keiser, D-Kent, and a majority of the committee have signed on as co-sponsors. It’s backed by Democrats such as Kohl-Welles and Republicans such as Sen. Jerome Delvin of Richland.

The committee heard a long parade of mostly supportive testimony from the public, led off by Walker, who painted a picture of medical marijuana users as normal folks mostly unfamiliar with marijuana.

“It was very minimal,” she said of her previous pot exposure. “A joint was passed around a party when I was around 16, and then my Marxist relatives in northern Vermont offered marijuana cookies to my husband and me in the early 1980s. My husband threw up for three hours afterward.

But after her husband’s treatment for melanoma left him with pain and complete loss of appetite, she said, they decided they would try anything. After a pickup at a downtown dispensary, the couple went to a family reunion and asked the young people in the room to help him figure out how to smoke it.

“His 87-year-old mother, desperate for her son’s survival, was cheering him on while examining the pipe to figure out if the seniors in her pottery class might be able to make one for him.

Not all patients and providers are on board. Medical marijuana activist Steve Sarich wore a button to the hearing that said “No Patient Registry. We are NOT sex offenders.

He’s worried law enforcement will use the registry to target, rather than avoid, patients.

Jordan Schrader: 360-786-1826

Tuesday, January 18, 2011

Case Law Updates Dec. 27, 2010-Jan. 7, 2011


Bail Jump: Classification of bail jump is the same as the offense the defendant is held for, charged with, or convicted of a the time of the failure to appear.
State v. Council, ___ Wn.2d___ (No 83654-0)(Dec. 30, 2010)

Facts: Mr. Council was charged with felony harassment when he failed to appear for a pre-trial hearing. He was arrested 4 months later, and the State added a charges of bail jumping and malicious harassment. The bail jumping charge was severed for trial. He was found not guilty of felony harassment and malicious harassment but convicted of misdemeanor harassment. A second jury subsequently found him guilty of bail jumping. The trial court classified the bail jumping as a class C felony because he failed to appear at a time when he was charged with a felony. On appeal he argued the bail jump statute was ambiguous.

Held: The statue is not ambiguous. Classification of bail jump is the same as the offense the defendant is held for, charged with, or convicted of.

Assault 3/Sufficiency: The floor is not an instrument or thing likely to produce bodily harm for purpose of the assault 3 statute when not used proactively to injure the victim.

State v. Marohl___ Wn.2d___ (No 83570-5)(Dec. 30, 2010)

Facts: Mr. Marohl was charged with Assault 2 and in the alternative Assault 3, stemming from a fight in a bar. Mr. Marohl put another patron, Mr. Peterson, in a choke hold, and either took him to the ground or Mr. Peterson fell. Mr. Peterson lost consciousness and his prosthetic arm broke off at the elbow. The prosecutor argued that the floor was “an instrument or thing likely to produce bodily harm” for purpose of the assault 3 statute. Mr. Marohl was convicted of assault 3 and appealed arguing that there was insufficient evidence that he used an instrument or a thing when he caused bodily harm.

Held: Where a defendant causes a victim to impact the floor, but does not proactively use the floor to injure the victim, the defendant has not used the floor like a weapon. The floor, under the circumstances of this case, is not included within the meaning of “instrument or thing” because it was not likely to produce harm and was not used like a weapon.

Death Penalty: Solitary Confinement at the IMU does not violate ex post facto. Good behavior by death row inmate does not create a liberty interest in a special housing unit or the attendant privileges.

In Re PRP of Gentry, ___ Wn.2d___ (No 84039-3)(Dec. 30, 2010)

Facts: Mr. Gentry was convicted of aggravated murder and sentenced to death in 1991. He resides at the Intensive Management Unit (IMU) of the Washington State Penitentiary. He challenged his conditions of confinement, claiming that solitary confinement violates ex post facto prohibitions. Death row inmates spend the first 12 months at the IMU. With good behavior, they were able to earn privileges and move to the special housing unit (SHU). Mr. Gentry had been housed in the SHU, enjoying additional privileges. In December 2008, due to state budget constraints, he was transferred back to the IMU where he was confined to his cell 23 hours a day and denied the privileges he had earned the SHU.

Held: Solitary confinement was contemplated by state law at the time of Mr. Gentry’s crime, thus there is no ex post facto violation. DOC has been given broad discretion over conditions of inmate housing. Participation in a good behavior program does not create a liberty interest in special housing and related privileges.


Sex crimes: Statements to sexual deviancy therapist are not privileged when they concern allegations of child sexual abuse.

State v. Hyder, ___Wn.App. ___ (No 37267-3)(Jan. 4, 2011)

Facts: Mr. Hyder was charged with multiple counts of child rape and child molestation involving two of his daughters. Prior to charging, he sought treatment from a sexual deviancy therapist. After Mr. Hyder was charged and prior to trial the attorneys agreed to review the CPS records, rather than have the court review them in camera. In the review of the records, they discovered a report by his therapist to CPS containing Mr. Hyder’s admissions regarding the sexual abuse. Police served a search warrant on the therapist for all the treatment records. The therapist and her forensic evaluator were called as witnesses at Mr. Hyder’s trial. Mr. Hyder’s moved in limine to prohibit their testimony, but was denied. On appeal, he asserted that the State’s use of a search warrant was improper since there are other procedures for seeking medical records which require notice to a patient in advance. Mr. Hyder also asserted that the records should have been reviewed in camera by the court, rather than the attorneys.

Held: The trial court did not abuse its discretion when it permitted the therapist to testify concerning Hyder’s admissions of abuse. The mandatory reporting laws trump the therapist patient privilege. The State’s use of a search warrant to obtain the medical records was not an abuse of process. The appellate court noted that although the attorneys agreed to review the records, they should have been viewed in camera by the court. The error was invited error and as such the issue was waived by Mr. Hyder.

Wildlife Trafficking: RCW 77.15.260 does not permit value aggregation of pieces of contraband.

State v. Yon, ___Wn.App. ___ (No 28774-2)(Dec 28, 2010)

Facts: Mr. Yon was charged with and convicted of wildlife trafficking in the first degree for purchasing four black bear gall bladders for $200.00 each. RCW 77.15.260 defines first degree wildlife trafficking as a C felony, and requires the value of the trafficked goods to exceed $250.00. Wildlife trafficking in the second degree is a misdemeanor. RCW 77.15.030 says that trafficking of big game, each big game animal should be charged as a separate offense. Mr. Yon argued it was improper to aggregate the value of the bear gall bladders to satisfy the elements of first degree wildlife trafficking.

Held: The statute intends for each piece of contraband to be charged separately and does not permit aggregation of value of pieces of contraband.

RALJ Appeal: The Superior Court exceeds the scope of review when it considers an issue not raised at the trial level.

State v. Rosalez___Wn.App. ___ (No 28253-8)(Dec 28, 2010)

Facts: Mr. Rosalez was charged and convicted of DUI. At his trial, he moved to suppress the breath test, based on the irregularities and false certifications in the crime lab during the tenure of Ann Marie Gordon. He argued due process violation, improper foundation, and challenged the evidence under ER 702 and 703. Mr. Rosalez did not expressly move to suppress the breath test under ER 403.

The trial court admitted the breath test, holding that the crime lab irregularities went to the weight of the evidence and not the admissibility. He was convicted at trial and appealed to Superior Court. The Superior Court reversed, holding that the breath test should have been suppressed, based on a due process violation of the right to a fair trial and on the failure to follow the protocols of RCW 46.61.506. The Superior Court also found that the trial court erred when it did not exercise discretion under ER 403, by failing to weigh the prejudicial value of the misconduct against the probative value of the breath test. The appellate court limited review in this case to whether the Superior Court exceeded the scope of review by considering the ER 403 issue.

Held: The Superior Court exceeded the scope of review when it held that the trial court erred for failure to exercise discretion ER 403, which was not argued at the trial level.