Medical marijuana advocates win one, lose one in court

Courts in Washington and California late last year handed medical marijuana users and their prescribing doctors a defeat and a victory, respectively.

The Washington Supreme Court in November clarified that a 1998 voter-approved measure allowing doctors to recommend medical marijuana does not apply when the physician is licensed outside of the state.

The Compassionate Use Act protects seriously ill patients from criminal prosecution when they use the drug with a doctor's recommendation. It established a state program that issues identification cards to qualified patients that they can present to law enforcement officials.

The statute defines qualifying patients as those who are treated by a Washington-licensed physician and who have been diagnosed by that doctor as having a terminal or debilitating medical condition, such as cancer, AIDS, glaucoma or other conditions that cause intractable pain.

Justices upheld the 2003 conviction of Sharon Lee Tracy for possessing cannabis, finding that she was not a qualified patient because her medical marijuana registry card was not authorized by a Washington-licensed doctor.

Tracy had a California card to use the drug, which a physician there recommended for her chronic pain from a hip deformity, migraine headaches and a series of corrective surgeries. She received the card in 2002 while she was in California taking care of her terminally ill mother and was arrested in 2003 in Washington, her home state.

"Tracy may have been exactly the kind of patient the voters of this state had in mind when they enacted the medical marijuana initiative ... but only qualifying patients are entitled to use the defense," Justice Tom Chambers wrote in the 6-1 opinion.

David Schultz, Tracy's attorney, said the strict ruling defies the statute's intent. Under Washington law, he said, licensed out-of-state physicians, under certain circumstances, are allowed to treat patients who are residents of Washington without obtaining a state medical license. That treatment includes drug prescriptions, Schultz said.

"Had the California doctor prescribed [Tracy] Vicodin, it would have been legal and she could have filled it at any Washington pharmacy," he said. "So why is that any different from medical marijuana?"

Lone dissenter Justice James M. Johnson expressed similar sentiments in his opinion.

Peter S. Banks, the Skamania County prosecuting attorney, said there is a big difference. "Marijuana is not nationally accepted as a mode of treatment," he said. Also, Washington's law could define qualifying illnesses more strictly than other states, he added.

Washington's licensing statute may allow out-of-state physicians to treat patients in limited situations, such as emergencies, but not on an ongoing basis, Banks said.

He added that he expects state lawmakers this year to introduce a measure to broaden the definition of a qualifying patient to include those with other illnesses, as well as allow recommendations from out-of-state doctors.

Ten other states have passed laws that decriminalize the use of medical marijuana for patients with certain terminal or debilitating illnesses, according to the National Organization for the Reform of Marijuana Laws.

American Medical Association policy calls for further adequate clinical research to determine whether marijuana and related cannabinoids are effective in treating patients with serious conditions for which preclinical and anecdotal evidence suggests efficacy.

A California win

Medical marijuana advocates won a round-one victory in California after a San Diego trial court ruled that the state's 1996 Compassionate Use Act does not clash with federal law banning the use and prescription of medical marijuana. The court ordered three counties to comply with the voter-approved measure, as well as the 2003 Medical Marijuana Program Act, which created a patient registry.

Last January, San Diego County sued the state to overturn the measures, fearing that the county would run afoul of federal law by complying with the statutes. San Bernardino and Merced counties joined the lawsuit, and all three had refused to issue ID cards to qualifying patients.

"This is yet another imprimatur by the courts to the validity of medical marijuana statutes, and that states cannot be forced to march in lockstep with the federal government," said Adam Wolf, a staff attorney with the American Civil Liberties Union Drug Law Reform Project. The group joined the state in fighting the lawsuit.

Teresa Schilling, spokeswoman for California Attorney General Bill Lockyer, said the ruling leaves in place legal protections for patients and caregivers. It reinforces that state and federal laws can coexist, she added.

The San Diego County Board of Supervisors on Dec. 14 voted to appeal the ruling to California's 4th District Court of Appeal. San Bernardino and Merced counties will not join the appeal.