WPIC 52.11 Medical Marijuana—Designated Provider—Defense
11 WAPRAC WPIC 52.11Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 52.11 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
December 2021 Update
Part VIII. Drugs and Controlled Substances
WPIC CHAPTER 52. Special Defenses—Uniform Controlled Substances Act
WPIC 52.11 Medical Marijuana—Designated Provider—Defense
It is a defense to a charge of [possession] [delivery] [or] [manufacture] [possession with intent to deliver] [of] marijuana that:
(1) the defendant was a designated provider;
(2) the defendant had been entered into the medical marijuana authorization database and held a valid recognition card, which specified the amount of marijuana that may be possessed;
(3) the defendant possessed no more marijuana than authorized on the recognition card;
(4) the defendant presented [his] [her] recognition card to any law enforcement official who questioned [him] [her] regarding [his] [her] medical use of marijuana; and
[(5)] [the defendant kept a copy of [his] [her] recognition card and the defendant's contact information posted prominently next to any plants, marijuana concentrates, marijuana-infused products, or usable marijuana located at his or her residence] [; and]
[(6)] [the defendant did not consume marijuana belonging to a qualified patient] [; and]
[(7)] [the defendant did not provide marijuana to anyone other than [his] [her] qualifying patient].
The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [as to this charge].
NOTE ON USE
This instruction applies only to offenses committed on or after July 1, 2016.
If this statutory defense is in issue, WPIC 50.06 (Delivery of a Controlled Substance), 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 50.51 (Marijuana—Definition), WPIC 50.52 (Marijuana—Infused Product—Definition), WPIC 50.53 (Marijuana Concentrate), WPIC 52.12 (Medical Use of Marijuana—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), and WPIC 52.20 (Medical Marijuana—Marijuana Plant—Definition) as applicable.
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.
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). 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). 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. It bears particular notice that considerations of substantial compliance may no longer be applicable.
Dual authorizations as a medical marijuana patient and a medical marijuana designated provider. RCW 69.51A.040(1)(a) anticipates that a defendant may be qualified as a medical marijuana patient and a designated provider for another qualifying patient. Under these circumstances, the statute authorizes possession of medical marijuana sufficient to satisfy both authorizations. If this fact pattern arises, the instruction should be modified to reflect the facts in the case.
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 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.
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.
[Current as of November 2019.]
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