Medical defense for marijuana still necessary

The Washington Supreme Court validated the right of individuals to present medical evidence if charged with possession of marijuana.

In Oct. 2010, police searched William Kurtz’s home and found more than 40 marijuana plants and 15 ounces of packaged marijuana. Kurtz was charged with manufacturing and possession of marijuana. The jury found Kurtz guilty of both charges and Thurston County Superior Court Judge Carol Murphy fined him $4,000.

Kurtz uses a wheelchair due to a hereditary medical condition and was 58 years old at the time of his conviction. He tried to prove that he had a medical need for marijuana, but was denied because he did not have a medical marijuana card at the time of his arrest.

Kurtz filed an appeal to the Washington Supreme Court. He believed that the lower court had made a mistake by not allowing him to use the medical necessity defense. On Sept. 19, the court filed its official ruling.

In a 5-4 decision, the Court held that medical necessity is still a viable defense for an individual charged with possession of marijuana. Chief Justice Madsen wrote the official opinion, which defends the court’s decision to maintain the medical necessity defense.

The divisive issue was whether or not Kurtz’s defense should be allowed despite the fact that individuals have a legal way of obtaining marijuana for medical use. For example, in 1998 Washington voters passed I-962, which legalized the medical use of marijuana.

Justice Susan Owens, who wrote the dissenting opinion, said, “Because individuals in this state have a legal way of using medical marijuana, the previously articulated common law defense of medical necessity for marijuana use is no longer appropriate.”

The medical necessity defense, which was first set forth in the 1979 case of State v. Diana, is seen as unnecessary by the dissenting justices.

The problem with the arguments against this defense is that they allow courts to find defendants guilty regardless of their specific medical circumstances. The medical necessity defense forces the courts to make decisions on a case-by-case basis, which should always be the case.

Not all people with the medical necessity are able to obtain a medical marijuana card. Seattle attorney Suzanne Elliott argued Kurtz v. Washington State and said the court should uphold the medical necessity defense. During her argument, she said that she had asked Kurtz why he did not have the proper documentation and that he said he “didn’t have the money.”

Not all individuals have the money to comply with the medical marijuana law because it requires regular access to a physician. Patients are required to see a doctor regularly who oversees his or her usage.

The medical marijuana act does not include provisions for people who cannot afford to comply with this portion of the law, therefore, the medical necessity defense still holds value.

Regular access to a physician might not be a viable option for every individual despite clearly having medical necessity for marijuana. Therefore, had the court done away with the medical necessity defense, individuals who lack access would have been left without any legal recourse.

Elliott also said, “there are some communities in which doctors, despite the protections in the Medical Marijuana Act, are reluctant to be proactive by writing the authorization.”

Kurtz did have a written letter from his physician stating that he would benefit from marijuana. His inability to present this evidence is what ultimately caused the jury to charge him. Had the defense been made available to him, he could have at least tried to make a case that he had a medical need for marijuana.

Additionally, the Medical Marijuana Act does not include an extensive list of illnesses that could be treated with marijuana.

Any physician could come to the conclusion that an ailment not listed in the law can be treated with marijuana, providing evidence that could then be presented in an individual’s defense.

An important question is why the medical defense act is necessary if the state passed I-502, which legalized the recreational use of marijuana. I-502 states that an individual over the age of 21 may possess up to one ounce of marijuana. However, one ounce is not typically enough for a person with a medical need for marijuana.

The Medical Marijuana Act, on the other hand, allows cardholders to possess up to 24 ounces and 15 plants. In addition, the patient does not have to be over 21 years old to obtain a prescription.

The Washington Supreme Court was right to uphold the medical necessity defense because an individual can provide evidence of circumstances outside of the protections of I-502 or the Medical Marijuana Act.

This defense ensures that every individual can present all evidence pertaining to their case, rather than being condemned as soon as it is shown they do not have a medical marijuana card.

Regardless of any laws that may be put into place regarding the recreational or medical use of marijuana in the future, the medical necessity defense needs to be upheld. If individuals are to be allowed to defend themselves in court, this defense has to be available.

The knowledge about marijuana and its uses is constantly expanding. What the medical necessity defense guarantees is that individuals are not boxed in by constraints of laws that are always changing and will continue to change.