The owners of a Tacoma medical-marijuana dispensary fighting to get back pot seized during a police investigation first must prove they are legally authorized to possess medicinal cannabis.
If they can’t, their case is dead on arrival.
But what constitutes sufficient proof?
The answer to that question, which is being pondered by Pierce County Superior Court Judge John Hickman, might have lasting repercussions as Washington continues to try to make sense of the evolving medical-marijuana landscape.
“It’s a challenging issue,” Hickman said Wednesday, adding that the case “could potentially be creating new law or at least an argument for review by another court.”
Guy Casey and Michael Schaef believe the medical authorizations signed by their doctors constitute enough proof to give them legal standing to continue their fight.
A doctor signing such an authorization attests that the patient has a qualifying medical condition – cancer, HIV and intractable pain, among them – under state law and that the use of marijuana might help provide relief for that condition that more traditional medications don’t.
Deputy prosecutor John Sheeran doesn’t think the form is enough.
He wants Casey and Schaef to produce medical records, and, if need be, sworn testimony from their doctors to prove they have a condition that qualifies them to possess medicinal cannabis.
“They can’t just throw a piece of paper down and say it’s valid documentation and that makes them a qualifying patient,” he argued to Hickman. “They’ve got to prove he is a qualifying patient.”
Attorney Aaron Pelley, who represents Casey, said it’s a doctor’s job to determine who qualifies for medical marijuana, not a judge’s. He also argued that requiring a doctor to divulge a patient’s medical history violates privacy laws.
Attorney Kent Underwood, who represents Schaef, pointed out that an appellate decision supports his client’s position.
“As long as the doctor has evaluated the condition and has advised the patient of the statutory provisions … the authorization is valid, that constitutes valid documentation and the qualifying condition itself does not need to be listed,” Underwood said.
No medical records or doctor’s testimony is necessary, he said.
Hickman told the parties he hadn’t made up his mind on the case, but he hinted he might be leaning toward Sheeran’s position.
“We have doctors advertising in the Little Nikkel want ads for medical exams for $25 off,” the judge said. “That causes me concern. For me just to accept blindly a document from a physician or health-care provider that I know nothing about … how do I know he himself is qualified?”
Casey and Schaef – who are friends as well as business partners – were arrested in May 2010 after agents with the West Sound Narcotics Enforcement Team raided the Club 420 cooperative on Oregon Avenue and Casey’s Ollala-area home.
Prosecutors charged the men with several drug crimes, and detectives seized 85 marijuana plants and 11 pounds of harvested pot.
Much of the case against the men was based on the testimony of a confidential informant, but prosecutors later dismissed the charges when that man’s credibility was called into question.
In March, Casey made a motion for the return of his marijuana and other property seized during the raids. Schaef followed suit in May.
Pelley and Underwood say their clients are legitimate medical-marijuana patients and providers and deserve to get their pot back.
Casey said outside court Wednesday he feels he’s the victim of a double standard. He wouldn’t have to prove a medical condition if he had a valid prescription for Percocet, he said.
Hickman is to issue a ruling on the proof question Sept. 2.
– Article originally from The News Tribune.