cannabisnews.com: Questions Cloud Medical-Pot Law 





Questions Cloud Medical-Pot Law 
Posted by CN Staff on January 19, 2004 at 07:12:54 PT
By Carol M. Ostrom, Seattle Times Staff Reporter
Source: Seattle Times 
Monica Ginn, a 53-year-old Olympia woman, believed she had her doctor's blessing to legally use marijuana to relieve chronic back pain. But last week, a Thurston County judge barred her from presenting a jury with evidence that she qualified under the medical-marijuana law passed by voters in 1998. She went to trial essentially without a defense and was convicted of possession and distribution of marijuana. Now, she faces up to five years in prison.
The case is the latest in a string of arrests, pending prosecutions and convictions of patients who claim to be legally qualified to use marijuana as medicine under Washington's law. For lawyers who defend these patients, the sentence facing Ginn has pushed them over the edge. They insist the law must be clarified and have begun work on a petition for direct review, asking the Washington State Supreme Court to end the confusion. The law says patients with certain qualifying conditions, including "intractable pain," can possess a 60-day supply of marijuana if they have valid documentation, including a statement signed by their physician specifying that the benefits of marijuana would likely outweigh its risks for that patient. The law also says a person acting as a caregiver for one qualified patient can possess marijuana. Suzanne Lee Elliott, a Seattle appellate specialist, said the petition for review will include Ginn's case, as well as recent convictions in Skamania and Stevens counties. Among the questions she hopes the court will answer: What exactly must a doctor do to diagnose a patient with a qualifying condition? What documentation will actually protect patients? Must the doctor have particular qualifications? How should a 60-day supply of marijuana be determined? Elliott said defense lawyers have found that when patients try to use the medical-marijuana defense, "judges don't know how to do it." In a number of cases, patients such as Ginn have not been allowed to present evidence to juries that they are legal users of marijuana under the law, which speaks of "humanitarian compassion." Under its guidelines, the state Supreme Court can directly review cases dealing with issues of "substantial public importance," Elliott said, without waiting for them to grind through the appeals process. "Obviously, (this law) is causing some consternation," she said. "I think a showdown is in the offing. We need uniformity." Kevin Johnson, Ginn's lawyer, agreed. "The court is just going to have to straighten this out," he said. "The people of the state of Washington said people with debilitating diseases can use marijuana." It rankles Ginn's lawyers that the jury was never able to hear the argument that Ginn had a medical reason for growing 23 plants and using the marijuana. Thurston County Judge Thomas McPhee, in the ruling excluding Ginn's medical defense, said the doctor hadn't proved Ginn had "intractable pain," a qualifying condition under the law. The law, McPhee told her lawyers, "requires more" about Ginn's condition than had been presented to him. "It is not sufficient, in my estimation, for a doctor simply to take a self-reported history from a person who has been using marijuana for a longer period of time and conclude that this patient qualifies under the medical-marijuana law." Dr. John Walck, Ginn's doctor, told the judge that he thought "medical marijuana was an appropriate therapy" for Ginn's chronic back pain. Dr. Gregory Carter, a medical-marijuana expert who took part in the pretrial hearing, said the judge was "second-guessing" the doctor. "In essence the judge is practicing medicine. That's scary," Carter said. If a doctor's letter authorizing a patient to use marijuana won't stand up in court, "then that's a whole new ballgame" for doctors and patients, said Carter, who also has signed authorization letters for patients. Carter, a clinical associate professor at the University of Washington and a rehabilitation-services regional medical director for Providence Health Care System, is board-certified in physical rehabilitation and electrodiagnostic medicine and has researched marijuana's clinical use. He noted the federal government's position that marijuana, like heroin, is an illegal drug for which there is no evidence of medical usefulness. But, Carter said, "The medical evidence for the utility and usefulness for cannabis is very strong. It's as strong as anything we do in medicine." With court rulings in Ginn's and other recent cases, Carter said, he worries that he could put a patient in legal jeopardy by authorizing medical use of marijuana. "If a doctor's authorization isn't going to be a usable defense, what's the law on the books for?" he asked. "It really limits the authority of physicians." Jack Jones, the prosecutor in the case, said the judge's ruling was appropriate. "I think the law is very clear" in the areas the judge cited in his ruling, said Jones, senior deputy prosecutor in Thurston County's criminal division. "The judge just applied the provisions of the statute as it was passed by the people during the initiative process. There are things about the law I think are unclear, but they didn't form the basis of the judge's ruling." One murky area that has surfaced in many cases is the requirement that patients have no more than a "60-day supply" of marijuana. But doctors say that specifying a dose would amount to a "prescription," which they think is prohibited and could invite federal scrutiny. "Doctors make a recommendation but we are not technically allowed to write a prescription — 'take x amount x times per day.' If you can't write a dose, how can you specify what a 60-day supply is?' " Carter asked. In a Stevens County case last year, the judge said the 60-day supply issue may be "a defect in the medical-marijuana initiative." Last year, a state appeals court upheld the felony marijuana-possession conviction of Ocean Israel Shepherd, a Spokane-area man. The court said he did not prove the amount he had was within the 60-day limit. It also said doctors should include specific amounts in their recommendations, and must say that patients "would" — not "may" — benefit from using the drug. One of the three judges on the appeals panel, however, said the law was "ambiguous" on the issue of documentation and should be interpreted to allow a doctor's statement that a patient "may benefit" from medical use of marijuana. Late last year, the 9th U.S. Circuit Court of Appeals ruled that patients who use medical marijuana — so long as they grow their own, get it for free and don't sell it — are protected from federal prosecution if they meet qualifications under state medical-marijuana laws. An appeal is expected in that case. For more information about the medical-marijuana law: http://www.eventure.com/i692/Pages/i692.htmlSource: Seattle Times (WA)Author: Carol M. Ostrom, Seattle Times Staff ReporterPublished:  Monday, January 19, 2004Copyright: 2004 The Seattle Times CompanyContact: opinion seatimes.comWebsite: http://www.seattletimes.com/Related Articles & Web Site:Initiative 692 - Medical Marijuanahttp://www.eventure.com/i692Pot Grower's Verdict Irks Marijuana Activistshttp://cannabisnews.com/news/thread18151.shtmlGrower Found Guilty in Medical Marijuana Case http://cannabisnews.com/news/thread18141.shtmlWoman's Aim To Use Pot Law Rebuffed http://cannabisnews.com/news/thread18134.shtml 
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Comment #1 posted by PAT DILLON on October 19, 2004 at 12:53:07 PT:
marijuana 
 THE SUPREME COURT HAS SAID THAT THE PROSECUTION IN A MEDICAL ORAL APPROVAL FROM A LICENSED PHYSICIAN MUST PROVE THE LACK OF APPROVAL BY A PREPONDERANCE OF THE EVIDENCE AND THE DEFENDANT NEED ONLY RAISE A REASONABLE DOUBT. WOULD A NOTARIZED WRITTEN VERIFICATION OF ORAL APPROVAL BE SUFFICIENT EVIDENCE TO RAISE REASONABLE DOUBT? MY DOCTOR IS AFRAID OF SUBPOENA BECAUSE IT TEARS UP HER LIFE AND HURTS HER PRACTICE. SHE GAVE ORAL APPROVAL AND THE LAW SAYS SHE SHOULD NOT BE PUNISHED BY BEING FORCED TO FLY HALFWAY ACROSS COUNTRY TO CONTRADICT THE D.A.'S REASONABLE DOUBT PLEASE ANSWER ME I NEED HELP FAST
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