Sixty Day Supply

One of the most frequent issues in medical marijuana cases is what constitutes a sixty-day supply. RCW 69.51A.040(2)(b) specifies that a qualifying patient may possess no more medicine than is necessary for a sixty-day supply. RCW 69.51A.040(2)(b). It does not, however, give any indication of what constitutes a 60-day supply.

Establishing what constitutes a sixty-day supply is complicated by the fact that many believe that, to protect themselves legally, doctors should not put amounts on recommendations. (This is because, while the First Amendment protects a doctor’s right to discuss the potential benefits of marijuana use with his/her patient (Conant v. Walters, 309 F.3d 629 (2002)), specifying recommended amounts has the potential to be interpreted as an attempt at an illegal precription--something that could cost a doctor his/her license or to subject him/her to prosecution for conspiracy to distribute.) Prosecutors are likely to argue that, without an amount on the recommendation, it is impossible to tell what constitutes a sixty-day supply. They will likely point to State v. Shepherd, in which the Division Three Court of Appeals states “While nothing in the act requires the doctor to disclose the patient’s particular illness, there must, nonetheless, be some statement as to how much he or she needs.” State v. Shepherd,110 Wn. App. 544, 552 (2002). At first this seems to suggest that the doctor must make a statement as to amount to be used, and the prosecutors will argue that that statement must be in the recommendation. However, we find that Shepherd controls little, if anything, regarding how to prove compliance with the supply limit.

Shepherd was a stipulated facts bench trial in which the defendant’s only evidence of compliance with the supply limit was a report by the Public Safety Committee of the Oakland City Council describing a method for determining the amount of usable medicine. Shepherd at 552. Thus, the defendant provided no evidence regarding his own use, and because the facts were stipulated, there was no opportunity to present expert testimony, which may have qualified or supplemented a “statement” or otherwise persuaded a jury.

For defense purposes, Shepherd is essentially nullified by State v. Ginn 182 Wn App. 872 (2005), review denied, 157 Wn.2d 1010 (2006). In Ginn, the Division Two Court of Appeals reviewed a case in which the trial judge had denied the defendant the right to present the medical marijuana defense at trial. In its review, the court found that the defendant was wrongly denied the defense. Ginn at 874. When the defendant presents evidence for each element of the defense that, viewed in the light most favorable to the defendant, might lead a reasonable jury to find in her favor, the defendant must be allowed to present the defense at trial. Ginn at 883. “The jury, not the judge, must weigh the proof and evaluate the witnesses’ credibility.” id.  Once you reach trial, the doctor’s testimony must be admitted, and the test becomes less formalistic.

How, then, to establish that the defendant is within the supply limit? It is best if he/she keeps a log of daily use. If this is the case, you may introduce it into evidence without having to put her on the stand. If not, you may have her provide an affidavit as to daily dosage. If she is going to testify, she can obviously provide this information in her testimony.

It is a good idea to have the doctor testify as well. While the doctor must take care to stay within federal law regarding recommendation of amounts, he/she may testify as to what, in their expert opinion, is a typical or average dosage, or may simply state that the amount defendant claims to use is, in his/her expert opinion, a reasonable amount for the treatment of the defendant’s condition. One study that you and the doctor may find particularly helpful in buttressing any testimony as to a reasonable or necessary dosage is "Medicinal Cannabis: Rational Guidelines for Dosing.pdf".

Police Encounters

There are three levels of police encounter:

Casual Conversation: Police want to have a friendly conversation with you. No proof of any crime is needed; they are likely fishing for data that could lead to a future arrest. Do not provide any information to the police, even if they seem very nice. Instead, ask politely if you are free to go; if yes, calmly leave the encounter.

Detention: The police can detain you if a reasonable suspicion exists that you were involved in a crime. They must tell you why you are detained and articulate the suspected crime. Ask if you are detained and why, and remember the answer. An unreasonable detention can help win your case. If detained, answer no questions and politely state that you choose to remain silent and want to consult a lawyer before being questioned.

Arrest: If under arrest, immediately tell police "I choose to remain silent and want to see my lawyer." Remain silent; do not fall prey to police efforts to convince you to talk.

Do not relay on the Miranda Warnings to benefit your case. Police only have to read your rights if you are under arrest and they want to question you. They are trained to get you talking. If this works, stop talking immediately and repeat the magic words.

Do not consent to a search. Be polite but firm about your rights with police during search encounters. If police knock on your door, step outside and close the door to talk. If in your car, follow police instructions to either stay seated or exit the car. If the cops say "Do you mind if I look in your purse, bag, home, or car?" say, "I do not consent to a search." If the cops say "Why not? Are you hiding something?" say, "I believe in my constitutional right to privacy and do not consent to a search."

The police may still search you, with or without a warrant, but this will preserve your right to contest the case. Never physically resist the police. If they continue despite your statement, stand aside and say the magic words: "I choose to remain silent and want to see my lawyer." Many cannabis cases are thrown out due to bad search warrants.