The Washington Supreme Court held in State v. Kurtz that the common law medical necessity defense to marijuana crimes continues to exist alongside extensive legislation regarding marijuana usage in Washington.

Background

William Kurtz was convicted of manufacturing and possessing marijuana.  During his trial, Kurtz attempted to present both a statutory medical marijuana defense and a common law medical necessity defense.  On motion from the prosecution, the trial court refused to allow Kurtz to raise either defense.  Kurtz appealed and the Court of Appeals affirmed the trial court’s ruling on the defenses.  Kurtz appealed to the Washington Supreme Court on the issue of whether he should have been able to present a common law medical necessity defense.

Analysis

In a 5-4 opinion by Justice Madsen, the Court determined that the common law medical necessity defense continues to be available for marijuana crimes.  This defense was first articulated in the Washington Supreme Court’s 1979 State v. Diana decision and is established by proof that: 1) the defendant reasonably believed that the use of marijuana was medically necessary 2) the benefit from using marijuana was greater than the harm sought to be prevented by drug laws and 3) no other drug is as effective as marijuana in minimizing the effects of the disease.  The Court determined that neither the Uniform Controlled Substances Act (UCSA) nor the Washington State Medical Use of Cannabis Act (MUCA) superseded the medical necessity defense.

In so holding, the Court overruled State v. Williams, a 1998 Court of Appeals decision finding that the legislature intended to abrogate the common law medical necessity defense by classifying marijuana as a Schedule I controlled substance under the UCSA.  The court determined that the classification of marijuana as a controlled substance did not constitute a legislative determination that marijuana has no acceptable medical use.

The Court next determined that the MUCA did not supersede the defense by providing a legal method for patients to obtain marijuana.  The Court found no legislative intention to abrogate common law, but rather an intention to allow terminally ill and debilitated patients access to marijuana based on “humanitarian compassion.”  A 2011 amendment to the MUCA made medical use of marijuana legal under Washington law for individuals who followed specific requirements.  Criminal liability remained for those who did not follow the prescribed steps.  Therefore, the Court determined that the medical necessity defense remains available for individuals prosecuted for failure to follow the steps to access medical marijuana legally.

The Court observed that the U.S. Supreme Court had held that the defense of necessity is unavailable where there was a “reasonable, legal alternative to violating the law.”  The Court therefore held that whether the individual had a “viable legal alternative to the illegal use of marijuana” is implicit in the marijuana defense.  The existence of a statutory scheme for legal access to marijuana “can be a factor in weighing” whether an alternative existed.

Dissent:                Justice Owens and three other Justices dissented on the grounds that the comprehensive statutory scheme embodied in the MUCA displaced the common law necessity defense with a legal means of accessing marijuana for medical treatment.

Commentary

Washington has adopted a policy view that marijuana has legitimate medicinal and even recreational value.  However, the state has only legalized some forms of marijuana possession and continues to treat other forms of marijuana possession and manufacture as crimes.  The Court has issued a pragmatic opinion recognizing that the guilt or innocence of defendants charged with marijuana crimes must be determined on the facts of each case, including whether the defendant violated the law out of medical necessity.

The legality of possessing large quantities of marijuana or manufacturing marijuana remains dependent on medical need even after the passage of the recreational marijuana initiative.  Recreational users may only legally possess up to one ounce of marijuana.  RCW 69.50.360.  Medical users may possess up to twenty four ounces of usable marijuana plus up to fifteen cannabis plants.  RCW 69.51A.040.  An individual user in possession of more than one ounce of marijuana must establish he or she complied with the MUCA to avoid criminal penalties.

The Court’s decision in State v. Kurtz ensures that the ancient common law defense of necessity continues to exist for those charged with violating drug laws for failure to follow the dictates of the MUCA.  The dissent points out that the detailed requirements of the MUCA make the statutory defense for medical marijuana is much narrower than the common law medical necessity defense.  While the dissent would eliminate necessity as a defense outside those narrow statutory requirements regardless of circumstances, the majority allows defendants to argue that they needed marijuana for a medical condition and could not have reasonably followed procedures to get legal medical marijuana.

It is too soon to determine how far this ruling will reach.  The availability of legal marijuana will doubtlessly be a heavy factor weighing against defendants’ arguments that they had no reasonable alternative to violating Washington drug laws.  Defendants who fail to ask their doctor for authorization or carelessly complete medical usage paperwork should not expect to gain much traction from the necessity defense.

However, this decision may provide a lifeline to the very poor.  Compliance with the MUCA requires access to a doctor who can certify a qualifying medical condition and supervise the patient’s marijuana usage.  A strong argument can be made that the legal method to possess more than one ounce of marijuana is therefore not truly available to people without the means to obtain that medical supervision.  Rather than allow conviction to turn on a defendant’s access to qualified medical care, the Washington Supreme Court will allow a person possessing or growing marijuana to make the case that obtaining a medical marijuana card was not a viable option for him or her.

By recognizing that the medical necessity defense continues to be available for marijuana crimes, the Supreme Court has simply confirmed that the MUCA was not intended to displace the traditional role of judges and juries in evaluating affirmative defenses.  It remains up to defendants to convince the court that the defense applies to them, which will not be an easy task in a state that provides a legal path for access to marijuana.