Up in Smoke

By Wayne C. Fricke

     On May 14, 2001, the United States Supreme Court, in the case of United States v. Oakland Cannibas Buyer’s Cooperative and Jeffrey Jones (2001 WL 501567), ruled that the Federal Controlled Substances Act prohibitions on manufacturing and distributing marijuana contained no exception based on medical necessity.  In ruling against the defense, the Court indicated that the defense of medical necessity could not succeed where the legislature has made a determination of values.  In the case of marijuana, Congress determined that there is no medical benefit worthy of an exception.  Consequently, unless our Congress changes its values, there will be no medical deference in a federal prosecution.

     Although the defense does not apply in federal cases, it remains a viable defense in state cases.  Chapter 69.51A, which was adopted by the people of the State of Washington, specifically allows for the defense in the prosecution of state cases.  The act specifically states that people in the State of Washington “shall not be found guilty of a crime under state law for their possession and limited use of marijuana.”  That same intent applies to physicians.  See RCW 69.51A.005.  Thus, in the prosecution and defense of marijuana cases in state court the defense should be explored, whether representing a physician who has prescribed marijuana or a person possessing it.

     However, be aware that success in state court does not prevent the federal government from pursuing a cause of action against the provider and/or user under the same set of facts.  This is so because the federal government is not precluded by the double jeopardy clause from prosecuting cases that have already been resolved in the state system.  Although, as a practical matter, most minor cases will not be pursued by the United States, it is certainly conceivable that the government may be interested in more significant cases. 

     Thus, depending on the facts of the case and the interest of the local federal authorities, a win can be a loss based on the same facts, depending on which jurisdiction chooses to prosecute.