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Appeals Court Upholds Medical Pot Conviction

March 12, 2002
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Appeals Court Upholds Medical Pot Conviction

by Gene Johnson, Associated Press

SEATTLE (AP) - The state Court of Appeals issued its first interpretation of Washington's medical marijuana law Tuesday, upholding a man's conviction for failing to follow it precisely.

Arthur "Ocean Israel" Shepherd, of Stevens County northwest of Spokane, pleaded guilty to felony possession of marijuana in March 2000. He reserved the right to argue on appeal that Initiative 692 should have protected him from prosecution because he was growing marijuana for his friend, John Wilson, who has a debilitating spine condition.

The Spokane division of the appeals court rejected that argument on two counts.

First, Dr. Gregg Sharp, who gave Wilson permission to use marijuana, wrote that using it "may" help him. The law requires doctors to find that marijuana "would likely" help patients, which is a different standard, two of the three judges said.

"It is not enough, as Dr. Sharp did here, to simply say that the potential benefits of the medical use of marijuana may outweigh the health risks for a particular patient," wrote Judge Dennis Sweeney.

Judge Kenneth Kato disagreed on that point, saying the law is somewhat ambiguous and that the "would likely" standard should not be taken literally.

But Kato agreed with the other judges on the second point: that Shepherd did not prove he was producing only enough marijuana to supply Wilson for 60 days, the limit dictated by the law. There was no evidence in the record concerning how much pot Wilson needed, so there was no way to know what constituted a 60-day supply.

I-692, which passed in 1998 with 59 percent of the vote, gives doctors the right to recommend - but not prescribe - marijuana for people suffering from cancer, AIDS, multiple sclerosis, glaucoma and other conditions that cause "intractable pain."

Marijuana is still illegal to buy and sell. It's listed in the same class of drugs as heroin and LSD. Possession of pot is allowed under I-692, but state law does not say how people can obtain it in the first place.

The appeals court suggested that doctors begin mentioning specific amounts of marijuana.

"While nothing in the act requires the doctor to disclose the patient's particular illness, there must, nonetheless, be some statement as to how much he or she needs," Sweeney wrote.

Law enforcement officials welcomed that part of the ruling. They have been asking the Washington State Medical Association to come up with some guidelines for helping them define a 60-day supply.

"I was really heartened that the court suggested it's up to the doctor to provide guidance as to what the supply is," said Kitsap County Prosecutor Russ Hauge. "It's very helpful, because that's where the burden belongs. If it's a medical issue, then the medical community needs to tell us what the amount is."

About a month ago, Hauge said, he decided not to press charges in a medical marijuana case because he didn't know whether 100 plants grown for three patients constituted a 60-day supply.

Authorities seized 15 plants from Shepherd when they arrested him.

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