WPIC 52.10 Medical Marijuana—Qualifying Patient—Defense

This instruction applies only to offenses alleged to have been committed on or after July 1, 2016.

If this statutory defense is in issue, or WPIC 50.11 (Manufacture of a Controlled Substance—Elements), or WPIC 50.13 (Possession With Intent to Manufacture or Deliver a Controlled Substance).

With this instruction, use WPIC 50.52 (Marijuana—Infused Product—Definition), WPIC 50.51 (Marijuana—Definition), WPIC 50.53 (Marijuana Concentrate—Definition), WPIC 52.13 (Medical Marijuana—Qualifying Patient—Definition), WPIC 52.14 (Medical Marijuana—Terminal or Debilitating Medical Condition—Definition), WPIC 52.16 (Medical Marijuana—Recognition Card—Definition), WPIC 52.12 (Medical Use of Marijuana—Definition), and WPIC 52.20 (Medical Marijuana—Marijuana Plant—Definition) as applicable.

Use the bracketed material as appropriate. See Comment below.

Do not use this instruction if a marijuana growing cooperative, under RCW 69.51A.250, is supported by the facts in the case. See WPIC 52.11.04 (Medical Marijuana—Cooperative—Defense).

Do not use this instruction if the defendant is not in the medical marijuana database. If the defendant is asserting a defense of being a qualifying patient or designated provider who is not in the medical marijuana authorization database, an instruction reflecting the requirements of RCW 69.51A.210(3) (effective July 1, 2016) should be drafted. The WPI Committee has not drafted a pattern instruction, believing that the defense will rarely be asserted.

RCW 69.51A.040(1); RCW 69.51A.210; RCW 69.51A.045. For offenses committed on or after July 1, 2016, the defense is available only to defendants whose acts are in strict compliance with RCW Chapter 69.51A. RCW 69.51A.005(2).

RCW 69.51A.040 and RCW 69.51A.210 establish an affirmative defense for a medically authorized patient's possession of marijuana. The defendant bears the burden of establishing the defense by a preponderance of the evidence. State v. Markwart, 182 Wn.App. 335, 329 P.3d 108 (2014); State v. Phelps, 118 Wn.App. 740, 744, 77 P.3d 678 (2003); State v. Shepherd, 110 Wn.App. 544, 550, 41 P.3d 1235 (2002). The defendant is required to prove the diagnosis and authorization. The accuracy of the diagnosis is not relevant to the defense as defined by the Legislature. State v. Constantine, 182 Wn.App. 635, 333 P.3d 226 (2014).

This instruction should be given only if requested by the defendant. State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013) (a defendant's constitutional right to control his or her defense prohibits the giving of instructions concerning defenses over the defendant's objections).

Care should be given to use only those portions of the instruction that are supported by the facts in the case.

Additional amounts authorized. WPIC 52.10 incorporates the quantity of medical marijuana authorized in RCW 69.51A.210(1). RCW 69.51A.210(2) conditionally authorizes a medical marijuana patient to grow up to fifteen plants and possess up to sixteen ounces of usable marijuana in his or her domicile. A healthcare professional must determine that the medical needs of the qualifying patient exceed the statutory amounts authorized and the additional authorized amounts must be entered into the medical marijuana authorization database. If the facts in the case support this alternative, use the bracketed material.

RCW 69.51A.260 limits the number of marijuana plants which may be grown in a single housing unit to fifteen plants.

Cautionary note regarding prior law. The Washington State Medical Use of Marijuana Act, codified in RCW Chapter 69.51A, was adopted in 1999. The Act has been repeatedly amended by the Legislature. The instructions in WPIC Chapter 52 (Special Defenses—Uniform Controlled Substances Act) are based upon the Laws of 2015, Chapter 70. These instructions apply only to an offense committed on or after July 1, 2016.

Courts and counsel should carefully review the version of the statutes that was in effect on the date of the offense and modify the pattern instructions as needed. It bears particular notice that considerations of substantial compliance may no longer be applicable.

Since 2007, the Legislature has amended the Act on four occasions. While some amendments have been minor, other amendments made substantial changes to the medical marijuana defenses. The WPI Committee has not incorporated the various changes into these instructions due to the rapidity in which the changes were made and the small number of cases in which a medical marijuana defense might be asserted under each version of the Act.