Medical-Marijuana Massacre

The new bill that makes a bad law even worse.

Douglas Hiatt says attorneys like him have a nickname for SB 5073, the gutted shell of a medical-marijuana reform bill that was passed in April before it was mostly vetoed by the governor. They call it the "lawyer retirement and protection program." The bill was originally crafted to protect medical-marijuana patients and providers. But in its current state, the legislation offers little or no such protections. In fact, according to Hiatt and others, the bill is so thoroughly confusing and Kafkaesque that the only ones who will truly benefit from its passage are the lawyers who will inevitably be employed in an effort to make sense of it. Gov. Chris Gregoire, meanwhile, is happy to tout the "protections" she says were preserved in the bill: For example, organ-transplant recipients will supposedly no longer be denied transplants due to medical cannabis use. And those arrested can still use the "affirmative defense" method of excusing their medical-cannabis possession in court. But Hiatt, an extremely prolific attorney who's been litigating medical-marijuana cases for years, tells Seattle Weekly that those protections are all talk. "There is absolutely no protection from arrest in that bill. None. Zero. Zip. Period," he says. "It's window dressing. Propaganda. And anyone who says otherwise is full of shit." Hiatt says the only benefit that made it through the governor's veto session was the one that deals with collective cannabis gardens. Under the new law, "Qualifying patients may create and participate in collective gardens for the purpose of producing, processing, transporting, and delivering cannabis for medical use." This right was not afforded to patients before SB 5073 was passed, and Hiatt, like others in the medical-marijuana community, appear to be thankful for that, at least. Still, the community-gardens portion of the bill is only one section. There are 63 others. "This bill was bad to begin with, now it's completely unworkable and unenforceable," says CannaCare dispensary owner and medical-pot activist Steve Sarich. "Gregoire should have just vetoed the whole thing." Vetoing the entire bill might have indeed saved Washington patients, providers, and law-enforcement officials major headaches; the bill's new, complex rules add little to the law itself besides a heap of language. So why did Gregoire only veto portions of SB 5073 and not the whole thing? We asked Gregoire spokesman Scott Whiteaker, who e-mailed this one-sentence response while directing us to a letter that Gregoire wrote to lawmakers when she vetoed most of the bill: "She signed the sections that retained the provisions of Initiative 692 and provided additional state law protections and vetoed the sections that put state employees at risk." But in vetoing the sections that "put state employees at risk," Gregoire made other unvetoed sections of the bill unenforceable. For example, section 401 offers protections from arrest, provided that a "qualifying patient" meet several stipulations, one of which is that "The qualifying patient or designated provider keeps a copy of his or her proof of registration with the registry established in 18 section 901 of this act . . . " The problem: There is no section 901. Section 901, which deals with the state-run patient registry, was vetoed. Therefore no one can meet the requirement that affords said arrest protections. Aaron Pelley, another local attorney with experience litigating cannabis cases, says that the bill is in such a Swiss-cheese-like state, it's nearly impossible to make sense of it. He says that no one will truly know what's in the law and how it affects people until patients start getting arrested and their cases are held up to legal scrutiny. "Unfortunately it will take someone being dragged along the wheels of justice before the real implications of the bill are known," says Pelley. "Patients are definitely no better off than they were before. And now there's just an incredibly confusing bill to try and interpret." Defending the governor, spokesman Whiteaker provided several examples of what he says are protections still contained in the bill. Writing Seattle Weekly, Whiteaker says: "She kept sections of the bill that preserve Initiative 692's affirmative defense from state prosecution for patients and those who assist them with the medical use of marijuana. She kept sections of the bill that provide additional state law protection from civil and criminal penalties. Parental rights may not be restricted solely due to the medical use of cannabis without showing impairment in the performance of parenting functions. Qualifying patients may not be denied an organ transplant solely because of medical-marijuana use. Medical-marijuana patients and their providers may grow cannabis for their own use, designate a provider to grow on their behalf, or participate in a collective garden with other qualifying patients without fear of state criminal prosecutions." But again, at everything but the collective-garden provision, Pelley, Hiatt, and Sarich scoff, saying the governor is blowing smoke. And in Hiatt's case, he finds the governor's office's claim that the bill offers greater protections for organ-transplant victims "insulting." He should know, since he represented Tim Garon, a medical-marijuana patient who died in 2008 because he was denied an organ transplant due to his medical-marijuana use. "I watched that man die waiting for a transplant," says Hiatt. "And I'm offended that anyone would say that the organ-transplant portion of the bill means a goddamn thing. It doesn't help a fucking bit." Whatever legal interpretation of SB 5073 one uses, though, two things seem sure. First, there is no concrete legal protection that will keep anyone in Washington state from being arrested, jailed, and prosecuted for possessing medically prescribed marijuana; second, anyone who's a bar-certified attorney will probably make a handsome living once the pot cases start rolling in.

 
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