RULING PUTS LIMIT ON GROWING MEDICAL POT

Doctors Must Specify How Much Marijuana Patient Needs If Supplier Is To Be
Protected

Doctors must say how much marijuana their patients need if patients and
caregivers are to be protected under Washington's medical marijuana
initiative, says the state Court of Appeals in Spokane.

The ruling in a Stevens County man's case is the first appellate court test
of the 3-year-old law, which voters adopted in November 1998 as Initiative 692.

The decision leaves Kettle Falls-area resident Ocean Israel Shepherd at
least one toke over the line. Shepherd, 53, failed to prove he was growing
only the permissible 60-day supply of marijuana for medicinal use by
another man, the Court of Appeals said.

Shepherd already has served his jail time and completed a required
in-patient drug treatment program. He was hoping the appeal would ease
restrictions on the cultivation and use of marijuana, which he regards as a
beneficial herb.

Lawyers on both sides say the appellate court decision essentially adopts
the analysis of Stevens County Superior Court Judge Rebecca Baker.

Baker ruled in March 2000 that Shepherd had a legitimate caregiver
relationship with a Colville man who had a valid medical reason to use
marijuana under Initiative 692.

She said Shepherd would be entitled to provide marijuana to the man if he
could prove he wasn't growing more than a 60-day supply. But he failed to
convince her he wasn't growing pot for himself as well as his friend, who
suffers from bipolar disorder and a debilitating spinal problem.

Shepherd has no telephone in his rural cabin, and couldn't be reached for
comment. His Spokane attorney, Frank Cikutovich, said he will ask the
Washington Supreme Court to review last week's appellate court decision.
Cikutovich said the American Civil Liberties Union and several Seattle-area
groups promoting the medical use of marijuana have offered support.

"We're going to ask the state Supreme Court to step in and, hopefully, be a
little more liberal on what a 60-day supply is," Cikutovich said.

Al Nielson, Stevens County's chief criminal deputy prosecutor, applauded
the Appeals Court decision, but said it didn't go far enough.

Nielson said the decision properly puts the onus on doctors to say how much
marijuana their patients need. But he was disappointed that the court
didn't address the problem of distinguishing medical marijuana from plain
old recreational pot.

People who use the drug for nonmedical purposes should not be caregivers,
he said.

"That is an important consideration to law enforcement, and I think it is
important that that particular part of the initiative be made clear,"
Nielson said. "It prevents people from using the initiative as a cover for
criminal activity."

Shepherd has openly admitted using marijuana, but Cikutovich said Shepherd
"has not stated that he smoked the marijuana that he grew for the patient."

Nielson viewed that distinction as an artifice. Cikutovich took a similar
view of the court's finding that Shepherd's case was doubly flawed because
a doctor's note used the wrong language.

"It just comes down to semantics," Cikutovich said. "I just see it as a
hypertechnical reading of the statute."

The Appeals Court declared it wasn't good enough for Dr. Gregg Sharp, a
Colville osteopath, to say in a note that "the potential benefits of the
medical use of marijuana may outweigh the risks for this patient."

The medical marijuana law requires a statement that the potential benefits
"would likely outweigh" the risks, the three-judge appellate court said.
All expert testimony must follow that standard, the judges noted.

Sharp has said it was an oversight that he used the wrong language,
Cikutovich said.

"Hopefully, it's not just a question of language for these doctors,"
Nielson said. "I hope they recognize that the court is concerned that there
be an honest analysis and statement."

But Nielson and Cikutovich believe the crux of the Appeals Court decision
is the requirement for doctors to say how much marijuana a patient needs.

"Who better than the doctor to provide that?" Nielson asked. "How can they
prescribe this unless they understand how it works and how much is needed?"

Nielson concedes that, even if a doctor says how much of the
tetrahydrocannabinol drug in marijuana a patient needs, that still leaves
the question of how many plants are needed to produce that amount.

Cikutovich points out that little research has been done to answer either
of those questions because of tight federal restrictions. He worries that
doctors may be reluctant to accept any greater role in helping patients
obtain marijuana for medicinal purposes because federal law prohibits them
from prescribing the drug.

"In effect, they're putting their medical license at risk trying to help
people," Cikutovich said. "The federal law is still a shadow over them."

One thing he and Nielson agree on is that, as Cikutovich put it, "the
waters are still muddy after the decision."