The Washington State Court of Appeals, in three recent decisions,
determined that medical cannabis continues to be illegal in Washington
State, despite language in RCW 69.51A.040 stating that compliance with the state’s Medical Use of Cannabis Act “does not constitute a crime.”State v. Ellis, Court of Appeals No 31280-1 (Div. III, January 9, 2014)
Cannabis Action Coalition v. City of Kent, Court of Appeals No 70396-0 (Div. I, March 31, 2014)
State v. Reis Court of Appeals No. 69911-3 (Div. I, March 21, 2014). As is evident by public record, our office represents the defendant, Mr. Reis, in this matter.
In all three of these decisions, the court held that state law does not legalize medical cannabis, but rather, continues to provide patients only an affirmative defense, meaning that patients may be arrested, but not convicted for violating the state’s Uniform Controlled Substances Act.
Some history on Washington’s medical cannabis law is helpful in understanding these decisions. In November 1998, the citizens of Washington enacted Initiative 692, the Medical Use of Marijuana Act. This Initiative provided patients and caregivers with an affirmative defense when charged by the state with possession or manufacturing medical cannabis. Accordingly, courts interpreted the law not to prohibit the arrest of those found with medical cannabis, but to provide for their eventual exoneration through court proceedings. See State v. Fry, 168 Wn.2d 1, 228 P.3d 1 (2010).
In an effort to correct this issue, which led to the arrest without prosecution of numerous medical cannabis patients, the legislature amended the law in 2011 under Senate Bill 5073 (“SB 5073”). The applicable statutory provision now reads:
The medical use of cannabis in accordance with the terms and conditions of this chapter does not constitute a crime and a qualifying patient or designated provider in compliance with the terms and conditions of this chapter may not be arrested, prosecuted, or subject to other criminal sanctions
RCW 69.51A.040 (emphasis added).This language appears to legalize medical cannabis—so long as such use and possession is in accordance with the terms and conditions of the law—which is distinguishable from an affirmative defense.
In that same legislation (SB 5073), however, the legislature created a state-wide patient registry. As many of you know, the governor vetoed large portions of SB 5073, including the state-wide patient registry (found in section 901 of the bill).
Despite this partial veto, non-vetoed portions of the bill still reference section 901 and the registry. See generally, RCW 69.51A.040(3) (“The qualifying patient or designated provider [must] keep[] a copy of his or her proof of registration with the registry established in *section 901 of this act . . . posted prominently next to any cannabis plants.”)
References to section 901 continue to exist in the law because line item vetoes, which would have been required to remove reference to section 901, are constitutionally prohibited. Our firm argued, in State v. Reis, that as a result of the veto, any remaining references to section 901 are meaningless and were incidentally vetoed. The court disagreed, and held that the vetoed state-wide patient registry was crucial to legalization.
In other words, the court held that even though no registry exists, the registry is a “term and condition of the chapter.” As a result, if there is no patient registry, no one can possess cannabis “in accordance with the terms and conditions” of chapter 69.51A RCW, and therefore, no one can legally possess medical cannabis.
In so holding, the court relied upon the governor’s veto message and RCW 69.51A.043, which states generally that a qualifying patient who is not registered with the registry established in section 901 may only raise the affirmative defense.
RCW 69.51A.043(2)states:
A
qualifying patient or designated provider who is not registered with
the registry established in *section 901 of this act, but who presents
his or her valid documentation to any peace officer who questions the
patient or provider regarding his or her medical use of cannabis, may
assert an affirmative defense to charges of violations of state law
relating to cannabis through proof at trial, by a preponderance of the
evidence, that he or she otherwise meets the requirements of RCW
69.51A.040.
So what is an affirmative defense in practical terms? Under an affirmative defense, if a patient is compliant with the law, she may be arrested, but may not convicted for violating the state’s Uniform Controlled Substances Act.
A well-known affirmative defense is self-defense. If you injure someone, but you were acting in self-defense, your actions may be excused. Similarly, here, if you are growing, processing, or distributing medical cannabis, law enforcement has probable cause to search your home, collective garden, and to arrest you. Once arrested, you must prove compliance with the Act (chapter 69.51A RCW) to avoid a conviction.
Of particular importance, an affirmative defense does not legalize the activity. As a result, even though patients may be in full compliance with the law, they may be searched, arrested, and criminally charged.
