State of Washington 55th Legislature 1998 Regular Session

By Senator Kohl

Read first time January 13, 1998. Referred to Committee on Health and Long-Term Care.

     AN ACT Relating to medical marijuana; amending RCW 69.50.204, 69.50.206, 69.50.401, 69.50.505, 69.51.080, and 9A.82.085; adding new sections to chapter 69.50 RCW; adding a new section to chapter 18.64 RCW; adding a new section to chapter 28A.300 RCW; creating new sections; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

     NEW SECTION. Sec. 1. The legislature finds that some studies have shown that some seriously ill patients, under their physicians' care, may benefit from the use of marijuana, to relieve symptoms and suffering. Some of the conditions for which marijuana appears to be beneficial include chemotherapy-related nausea and vomiting in cancer patients, AIDS wasting syndrome, glaucoma, muscle spasms associated with epilepsy and multiple sclerosis, and some forms of intractable pain.

     The legislature finds that humanitarian compassion necessitates that the decision to authorize marijuana for use by seriously ill patients is a personal, individual decision, based upon the physician's professional medical judgment and discretion, and founded in the privileged physician-patient relationship. The legislature finds that the advice given by a physician to his or her patient is constitutionally protected free speech, and as such is entitled to the protection of the first amendment of the bill of rights, and the Constitution of the state of Washington. The legislature further finds that, in an era when some seriously ill or terminal patients are driven to thoughts of suicide, refusal to allow physicians to authorize the use of medical marijuana to relieve intractable pain and suffering is unconscionable.

     The legislature further finds that, although the policy of the federal government is to oppose the use of medical marijuana, Washington state public policy, in the interests of compassion, free speech, and advancement in the treatment of the terminally ill necessitates the legalization of limited, physician-supervised medical marijuana. Some medical researchers believe that increased clinical experience may provide valuable data not yet available in limited scientific studies. The legislature finds that the medical utility of marijuana is worth studying, and encourages public and private research organizations and physicians to research such use, including efficacy, and availability of pharmaceutical quality marijuana.

     The legislature intends that seriously ill patients, who, in the judgment of their physicians would benefit from the use of medical marijuana, be exempt from liability and criminal prosecution for limited, personal possession and use of marijuana. The legislature intends that physicians also be immune from liability and prosecution for the authorization of marijuana use to patients for whom, in the individual physician's professional judgment, medical marijuana may prove beneficial.

     The legislature intends to strictly limit the legalization of marijuana to medical use, upon authorization of a physician. The legislature does not condone the nonmedical, recreational use of marijuana under any circumstances.

     NEW SECTION. Sec. 2. A new section is added to chapter 69.50 RCW to read as follows:

1. It is a complete defense to manufacturing, delivering, or possessing marijuana that a person is a bona fide patient of a physician licensed under chapter 18.71 RCW, and has a serious medical condition such as cancer, AIDS, glaucoma, epilepsy, some forms of intractable pain, or multiple sclerosis for which his or her physician has authorized the use of medical marijuana, and has provided the patient with valid documentation of such authorization and shall not be a violation of law if conducted in accordance with this provision.
2. Such defense shall be established where the evidence shows that the patient:
   1. Possessed valid documentation consisting of a written prescription or authorization for marijuana specifying such person as a patient, bearing a date less than six months old and an original signature of a licensed physician;
   2. Possessed no more than two ounces of marijuana;
   3. Possessed only marijuana that was not at any time in plain view of the general public;
   4. Provided no marijuana to others; and
   5. Maintained reasonable security measures to prevent theft of marijuana.

     NEW SECTION. Sec. 3. A new section is added to chapter 69.50 RCW to read as follows:

     A physician licensed under chapter 18.71 RCW shall not be subject to arrest or prosecution under Washington state law, penalized in any manner, or denied any right or privilege, for:

1. Advising a patient about the risks and benefits of medical use of marijuana or that he or she might benefit from the medical use of marijuana where such use is within a standard of care or in the individual physician's best medical judgment; or
2. Providing a patient with written documentation, based upon the physician's assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, prescribing or authorizing the medical use of marijuana where such use is within a standard of care.

     NEW SECTION. Sec. 4. A new section is added to chapter 69.50 RCW to read as follows:

1. It is a misdemeanor to use or display medical marijuana in plain view of or in a place open to the general public, or within one thousand feet of a school as defined in RCW 69.50.435or an institution of higher education except in authorized locations within hospitals and clinics under the care of a licensed physician unless the patient's home is within one thousand feet of such a school or institution of higher education.
2. Nothing in this act shall require any health insurance provider to be liable for any claim for reimbursement for the medical use of marijuana.
3. Nothing in this act shall require any accommodation of any medical use of marijuana in any place of employment.

     NEW SECTION. Sec. 5. A new section is added to chapter 69.50 RCW to read as follows:
     Patients choosing to use medical marijuana under a physician's authorization must provide, upon request of a law enforcement officer or prosecutor, valid documentation of the physician's authorization of the use of medical marijuana, including a twenty-four-hour contact phone number for the authorizing physician to be contacted by law enforcement to confirm the authorization.

     NEW SECTION. Sec. 6. A new section is added to chapter 18.64 RCW to read as follows:
     Any pharmacist licensed under this chapter who in good faith provides medical marijuana to a qualified patient in accordance with the requirements of this act, shall be immune from legal liability, including criminal, civil, or professional conduct sanctions, unless otherwise negligent.

     NEW SECTION. Sec. 7.

1. The department of health shall establish by rule a procedure for the collection of data regarding the use of medical marijuana. The collection of data shall be voluntary, not mandatory, on the part of physicians who may authorize the use of medical marijuana to patients. The data shall include, at the least, the following information:
   1. The diagnosis and condition or symptoms for which the medical marijuana is authorized;
   2. The patient's assessment of the effectiveness of the medical marijuana use; and
   3. Demographic data, including the patient's county of residence, gender, and age.
2. Data collected shall maintain the confidentiality of the patient, and shall be used by the department to report the extent of voluntary reporting of medical marijuana use, the types of medical conditions for which it was used, basic demographic information, and the efficacy based upon patient self-reporting. This report shall be made by the secretary of health to the legislature by January 31, 1999.

NEW SECTION. Sec. 8. A new section is added to chapter 28A.300 RCW to read as follows:
     The department of health and the office of superintendent of public instruction shall cooperate in developing and making available to schools a media campaign providing a strong and clear counter-message regarding the nonmedical, recreational use of marijuana. The media campaign shall clearly explain that medical marijuana may be used only by seriously ill patients, under the care of a physician, upon the physician's authorization. The campaign shall state, in an age- appropriate and culturally sensitive manner, that nonmedical, recreational marijuana use is illegal, and that medical and public health authorities advise that children never use marijuana or any other prescription or nonprescription drug, except under the supervision of a health care professional.

Editor's Note: Sections 9 through 14 contains the revisions to the existing RCW's. Even though just a small section is being revised, the bill must contain complete sections of this code and as a result is very long. This is a summary of the changes with links to the actual revised text. Bold underlined text indicates additions. Bold italicized text indicates removals.

Sec. 9. RCW 69.50.204 and 1993 c 187 s 4 are each amended to read as follows:
Unless specifically excepted by state or federal law or regulation or more specifically included in another schedule, the following controlled substances are listed in Schedule I:
...
(14) Marihuana or marijuana, except when authorized for use under section 2 of this act or chapter 69.51 RCW;
...
Sec. 10. RCW 69.50.206 and 1993 c 187 s 6 are each amended to read as follows:
      (a) The drugs and other substances listed in this section, by whatever official name, common or usual name, chemical name, or brand name designated, are included in Schedule II.
...
      (3) Marihuana or marijuana, when authorized for use under section 2 of this act or chapter 69.51 RCW.
...
Sec. 11. RCW 69.50.401 and 1997 c 71 s 2 are each amended to read as follows:
...
(e) Except as provided for in subsection (a)(1)(iii) of this section or section 2 of this act any person found guilty of possession of forty grams or less of marihuana shall be guilty of a misdemeanor.
...

Sec. 12. RCW 69.50.505 and 1993 c 487 s 1 are each amended to read as follows:
...
(iii) The lawful possession of marijuana for medical use as authorized by state law shall not result in the forfeiture of real property;
(iv) The possession of marijuana other than medical marijuana shall not result in the forfeiture of real property unless the marijuana is possessed for commercial purposes, the amount possessed is five or more plants or one pound or more of marijuana, and a substantial nexus exists between the possession of marijuana and the real property. In such a case, the intent of the offender shall be determined by the preponderance of the evidence, including the offender's prior criminal history, the amount of marijuana possessed by the offender, the sophistication of the activity or equipment used by the offender, and other evidence which demonstrates the offender's intent to engage in commercial activity;
...
(q)(1) Property, and any interest in property, possessed, owned, or used in connection with the claimed medical use of marijuana seized by Washington state enforcement officials based on the presence of marijuana shall not be wasted while in the possession of such officials.

(2) Property seized by Washington state enforcement officials from a qualified patient in connection with the claimed medical use of marijuana shall be returned immediately upon the determination by the prosecuting attorney or his or her designee that the person is entitled to the protections provided by this chapter as may be evidenced, for example, by a decision not to prosecute, the dismissal of changes, or acquittal.

Sec. 13. RCW 69.51.080 and 1979 c 136 s 8 are each amended to read as follows:
...
     (2) Cannabis, tetrahydrocannabinols, or a chemical derivative of tetrahydrocannabinols shall be considered Schedule II substances as enumerated in RCW 69.50.206 ((only)) for the purposes enumerated in this chapter.

Sec. 14. RCW 9A.82.085 and 1985 c 455 s 9 are each amended to read as follows:
     In a criminal prosecution alleging a violation of RCW 9A.82.060 or 9A.82.080, the state is barred from joining any offense other than the offenses alleged to be part of the pattern of criminal profiteering activity and is barred from joining any offense or act stemming from the lawful manufacture, delivery, or possession of marijuana for medical use as authorized by state law. When a defendant has been tried criminally for a violation of RCW 9A.82.060 or 9A.82.080, the state is barred from subsequently charging the defendant with an offense that was alleged to be part of the pattern of criminal profiteering activity for which he or she was tried.

NEW SECTION. Sec. 15. This act may be known and cited as the Washington state medical marijuana act.

NEW SECTION. Sec. 16. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.