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Legal Quandry Snags Medical Pot Users

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Mar. 20, 00
Herald Net
By Cathy Logg, Herald Writer
Marysville case puts spotlight on clash of federal, state laws...
Washington state's legitimate medical marijuana users face a problem. They can legally grow their own pot or purchase it, but anyone who gives or sells them marijuana, its seeds or plants could be charged with a felony. "That's the problem," said Dr. Rob Killian of Seattle, author of the medical marijuana initiative approved by voters in 1998. "People don't know where to go to get it." The problem can't be fixed by prosecutors or by the state Legislature because lawmakers can't override federal law, which doesn't recognize marijuana as a legal drug, Killian said. "We're trying to change that," he said, adding medical marijuana supporters were denied a hearing in Congress. "We believe the more states that pass this, the more pressure will be put on Congress to change the federal law," Killian said.
Beverly Foxx, 64, who has been staying in Everett, stoked up the issue in Snohomish County two weeks ago when Marysville police evacuating a motel because of a natural gas leak seized about 35 marijuana plants from a room rented to her son, Alex Rundquist. Foxx, who says she's authorized to use marijuana under the initiative, wants her plants back. But police kept the plants and sent a report to the Snohomish County prosecutor's office for a review that could take weeks. Foxx has threatened to light up a marijuana pipe in the Marysville police station to get the issue before a judge in hopes of clarifying the law and getting her plants back. She has papers signed by several doctors regarding her medical problems, but the papers predate the initiative's passage. At least one of the doctors now says Foxx doesn't qualify as a legal medical marijuana user. Among her medical problems, she said, are cancer, a cyst behind one eye, arthritis and intractable pain. Foxx said she has new documentation from two doctors and her attorney will meet next week with the Marysville officer who seized her plants so he can review her paperwork. After that, Snohomish County prosecutors will decide whether Foxx will be charged. They did not want to discuss the case before they receive all the paperwork from Marysville police.
The initiative was specifically crafted to keep the state out of federal court, Killian said. Under the law, physicians are allowed to discuss with patients marijuana's risks and possible benefits, and if the benefits outweigh the risks, the doctor can state it in writing. Doctors cannot prescribe marijuana, and they're prohibited from discussing where or how patients can get it. There are things in the law that need to be clarified, such as what constitutes a legal 60-day supply of pot. So far, authorities say there has been no test case on which a court could issue a ruling.
A bill this year to allow the state Health Department to define such a supply was supported by police and prosecutor associations, and passed the state Senate, but was blocked in a House committee by Rep. Mike Carrell, R-University Place, Killian said. A proposal last year to create a registry of authorized users also died in committee, he said. That leaves patients who are legally entitled to use marijuana, as well as police charged with enforcing the law, in a quandary. "In my opinion, this law was about protecting people on the local level, where most drug arrests happen," said Killian, a family physician who specializes in HIV and AIDS. "Marijuana is ubiquitous and available everywhere. Patients have had little trouble getting access to it." However, anyone who supplies it to them runs a risk.
No concrete numbers are available regarding how many patients use marijuana medicinally because there is no registry, authorities say. It is used to reduce extreme nausea, such as from cancer or chemotherapy; to increase appetite to allow normal food consumption; to control muscle spasms, seizures and chronic pain; and to reduce eye pressure in glaucoma patients.
Organizations such as Green Cross in Seattle provide information and support to medical marijuana patients, along with the pot itself. The co-op serves more than 1,000 patients per month, according to JoAnna McKee, its co-founder and director. "Green Cross should be teaching people how to grow their own, but they charge for pot. It's an absolute business venture," Killian said. A 60-day supply is about a pound of marijuana, McKee said, although the law doesn't define it. Some patients grow their own plants and if they have extra, they provide it to the co-op to share it with others, she said. "It's given away for cost," she said. "We ask for a donation to cover the cost of the lights and stuff for the patients. It's totally a nonprofit organization. "We know that right now there are patients who are dying who couldn't get the medicine for themselves, who are not capable of growing it for themselves. You can't just tell them, 'I'm sorry, I can't help you.' " Police and prosecutors don't target such groups or monitor to whom marijuana is distributed, but those people could be charged and prosecuted for supplying marijuana, authorities say.
The biggest stumbling block is determining how much pot is enough. "Nobody knows for sure what that is," said Dan Satterberg, chief of staff in the King County prosecutor's office. "You'll know it when you see it; you'll know it when it's excessive. I don't think prosecutors are going to want to go after a case where it's a 62-day supply. But if you've got hundreds of plants or pounds of pot, then that's something a defendant can argue and something for a jury to consider," Satterberg said. "Our policy is to enforce the law." His office works directly with King County police agencies to provide consistency in how they approach possible medical marijuana cases. One of the great flaws of the initiative is that it didn't set up any distribution network, he said. A doctor simply documents that patients have one of the qualifying diseases or intractable pain. "Then the patient is essentially on their own to enter into a criminal transaction with people who don't sell regulated items," Satterberg said. "They're buying it on the street. And at some point up the chain, someone has committed a felony crime that has no defense to it," he said.
Ahead of many other police agencies, the Seattle Police Department has developed a draft enforcement policy to guide officers investigating marijuana cases in which people claim a legal right to possess and use it, said Leo Poort, the department's legal adviser. The policy requires officers to take and test a sample, as well as to document the amount of marijuana a person has, along with their documentation, and to ask what the person's daily dose is. "We've asked them to consult with us when they see such as case," and to refrain from arresting and booking a person "until we figure out what we've got," Satterberg said.

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