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Out-of-state doctors can't advise use of pot, court says
11-23-06 l The Seattle Times l Rachel LA Corte

OLYMPIA — A voter-approved initiative allowing doctors to recommend medicinal marijuana does not apply to cases where the doctor is licensed outside of the state of Washington, the state Supreme Court ruled Wednesday.

"The initiative could have, but did not, define a qualifying doctor as one with a valid license from any state," Justice Tom Chambers wrote in the 6-3 majority decision.

Initiative 692 passed in 1998 with 59 percent of the vote. It gives doctors the right to recommend — but not prescribe — marijuana for people suffering from cancer, AIDS, multiple sclerosis, glaucoma and other conditions that cause "intractable pain."

Marijuana is still illegal to buy and sell. It's listed in the same class of drugs as heroin and LSD. Possession of pot is allowed under I-692, but state law does not say how people can obtain it in the first place.

In its decision, the high court affirmed a Court of Appeals ruling that upheld the conviction of Sharon Tracy, who had been charged with possession and manufacturing of marijuana.

Tracy, 53, suffers from a hip deformity and migraine headaches. She has had a series of corrective surgeries following a ruptured colon and bowel conditions, according to court records.

She was arrested in May 2003 after police arrived at her home to investigate a domestic-violence complaint. While there, police smelled marijuana and, after returning with a search warrant, found just over an ounce of marijuana, four marijuana plants and a California medical-marijuana card.

A few months after the arrest, she obtained another medical card from a doctor in Portland, the closest large city across the border from her home in Stevenson, Skamania County.

The judge at her trial in Skamania County would not let her use a "compassionate use" defense allowed under I-692, because she was not a "qualified" candidate because the card in her possession at the time of her arrest was not issued by a doctor who was formally licensed to practice medicine in Washington state.

The trial court found that the authorization received by the Oregon doctor met Washington's requirements, but it was not able to be used in court because the card was received after her arrest. David Schultz, Tracy's attorney, said that at the time of her arrest she was traveling back and forth between the two states because of her family situation, which is why she got the card from California in the first place.

She said that some of her health problems had to do with the pain medication she had been on for years, which is why the doctor switched her to medicinal marijuana.

"Had the California doctor prescribed her Vicodin and Soma or anything like that, the prescription would have been legal. She could have filled it at any Washington pharmacy," Schultz said. "I have a lot of trouble seeing the difference, especially in light of what the initiative stands for."

In his dissent, joined by justices Richard Sanders and Barbara Madsen, Justice Jim Johnson wrote that the majority opinion ignores the intent of the voters. "The majority offers no persuasive rationale for holding that the people of Washington understood, let alone intended, that an otherwise qualified patient would be excluded from protection by I-692 simply because the patient's treating physician was licensed in California or Oregon rather than Washington," he wrote.

The American Civil Liberties Union of Washington said the ruling shows that the law needs to be made more clear. "Seriously ill people still are being prosecuted and convicted for using medical marijuana," said Jennifer Shaw, the organization's legislative coordinator.