Friday, July 11, 2014
Mixed results for defendant in WA medical marijuana appeal involving recommendations on "non tamper resistant" paper
Though recreational marijuana stores opened in Washington this week, its medical marijuana laws are likely to be kicking around the courts for at least a little while longer. And a recent Washington appeals court decision (PDF) indicates that defendants who did not very carefully abide by the relevant legal requirements may be out of luck.
The case involves a college student providing medical marijuana to a series of patients by having each one temporarily designate him as their medical marijuana provider. Consistent with an earlier ruling, the appeals court held that this practice was permitted by the law. As a result, it overturned two of the defendant's convictions. It upheld three other convictions, however, where the defendant sold marijuana to an informant with a fake recommendation that was not on tamper resistent paper.
From the court's opinion:
The delivery charges relate to the sales to the confidential informant. Markwart does not dispute that the authorization the informant showed was not on tamper resistant paper. To establish the affirmative defense, a person must meet the criteria for status as a designated provider and present his "valid documentation" to any law enforcement official who questions him. Former RCW 69.51A.040 (LAWS OF 2007, ch. 371, § 5). Valid documentation required a statement signed by a health care professional "on tamper-resistant paper." Former RCW 69.51A.OI0(7)(a).
Tyler Markwart argues the trial court should have permitted him the opportunity to argue to the jury that providers may reasonably rely on documentation presented by a patient. We find no case that implies the medical marijuana provider 'may rely on the patient to present the obligatory documentation. We find no case that waives the requirement that a medical marijuana provider insure that the authorization be on special paper. Further, Markwart's argument conflicts with the statute. MUMA expresses an intent that the provider ascertain the qualifications of the patient. The citizens of Washington, when adopting MUMA, and the state legislature, when enacting amendments, necessarily considered tamper resistant paper critical in the delivery of medical marijuana. The citizens and legislators understood the ease by which authorizations could otherwise be forged. If Tyler Markwart did not know what constituted tamper resistant paper or was unable to detect the special form of paper, he should not have been in the business of selling medical marijuana. He should have educated himself, before making any sales.