The state schedule 1 test is required to be applied and the schedule is required to be updated periodically.Otherwise why would we have Pharmacy boards.The problem is the top down system of control was lost,and the state act was written as a mirror policy of the federal act.The bottom line here is Washington State does not want to apply the state schedule 1 test properly because marijuana has accepted medical use in the "United States"and the state agency which regulates medical practice and the same state agency that has to apply the state schedule 1 test has said marijuana has accepted medical use.Even the board admitted it has accepted medical use(they had to they added qualifying conditions)They just want to apply a different test.However the other RCW WITH a-i is not the state schedule 1 test.If it was Hanson would have ruled that marijuana did not meet the a-i RCW.Hanson didn't do that Hanson specifically said the state schedule 1 test was

RCW 69.50.203
Schedule I tests.

(a) The state board of pharmacy shall place a substance in Schedule I upon finding that the substance:

(1) has high potential for abuse;

(2) has no currently accepted medical use in treatment in the United States; and

(3) lacks accepted safety for use in treatment under medical supervision.

(b) The board may place a substance in Schedule I without making the findings required by subsection (a) of this section if the substance is controlled under Schedule I of the federal Controlled Substances Act by a federal agency as the result of an international treaty, convention, or protocol.

And they reasoned the board saw fit not to apply this test or had not been asked to.

RCW 69.50.201
Enforcement of chapter â?? Authority to change schedules of controlled substances.

(a) The state board of pharmacy shall enforce this chapter and may add substances to or delete or reschedule substances listed in RCW 69.50.204, 69.50.206, 69.50.208, 69.50.210, or 69.50.212 pursuant to the procedures of chapter 34.05 RCW.

(1) In making a determination regarding a substance, the board shall consider the following:

(i) the actual or relative potential for abuse;

(ii) the scientific evidence of its pharmacological effect, if known;

(iii) the state of current scientific knowledge regarding the substance;

(iv) the history and current pattern of abuse;

(v) the scope, duration, and significance of abuse;

(vi) the risk to the public health;

(vii) the potential of the substance to produce psychic or physiological dependence liability; and

(viii) whether the substance is an immediate precursor of a controlled substance.

(2) The board may consider findings of the federal Food and Drug Administration or the Drug Enforcement Administration as prima facie evidence relating to one or more of the determinative factors.

(b) After considering the factors enumerated in subsection (a) of this section, the board shall make findings with respect thereto and adopt and cause to be published a rule controlling the substance upon finding the substance has a potential for abuse.

(c) The board, without regard to the findings required by subsection (a) of this section or RCW 69.50.203, 69.50.205, 69.50.207, 69.50.209, and 69.50.211 or the procedures prescribed by subsections (a) and (b) of this section, may place an immediate precursor in the same schedule in which the controlled substance of which it is an immediate precursor is placed or in any other schedule. If the board designates a substance as an immediate precursor, substances that are precursors of the controlled precursor are not subject to control solely because they are precursors of the controlled precursor.

(d) If a substance is designated, rescheduled, or deleted as a controlled substance under federal law, the board shall similarly control the substance under this chapter after the expiration of thirty days from the date of publication in the federal register of a final order designating the substance as a controlled substance or rescheduling or deleting the substance or from the date of issuance of an order of temporary scheduling under Section 508 of the federal Dangerous Drug Diversion Control Act of 1984, 21 U.S.C. Sec. 811(h), unless within that thirty-day period, the board or an interested party objects to inclusion, rescheduling, temporary scheduling, or deletion. If no objection is made, the board shall adopt and cause to be published, without the necessity of making determinations or findings as required by subsection (a) of this section or RCW 69.50.203, 69.50.205, 69.50.207, 69.50.209, and 69.50.211, a final rule, for which notice of proposed rule making is omitted, designating, rescheduling, temporarily scheduling, or deleting the substance. If an objection is made, the board shall make a determination with respect to the designation, rescheduling, or deletion of the substance as provided by subsection (a) of this section. Upon receipt of an objection to inclusion, rescheduling, or deletion under this chapter by the board, the board shall publish notice of the receipt of the objection, and control under this chapter is stayed until the board adopts a rule as provided by subsection (a) of this section.

(e) The board, by rule and without regard to the requirements of subsection (a) of this section, may schedule a substance in Schedule I regardless of whether the substance is substantially similar to a controlled substance in Schedule I or II if the board finds that scheduling of the substance on an emergency basis is necessary to avoid an imminent hazard to the public safety and the substance is not included in any other schedule or no exemption or approval is in effect for the substance under Section 505 of the federal Food, Drug, and Cosmetic Act, 21 U.S.C. Sec. 355. Upon receipt of notice under RCW 69.50.214, the board shall initiate scheduling of the controlled substance analog on an emergency basis pursuant to this subsection. The scheduling of a substance under this subsection expires one year after the adoption of the scheduling rule. With respect to the finding of an imminent hazard to the public safety, the board shall consider whether the substance has been scheduled on a temporary basis under federal law or factors set forth in subsection (a)(1)(iv), (v), and (vi) of this section, and may also consider clandestine importation, manufacture, or distribution, and, if available, information concerning the other factors set forth in subsection (a)(1) of this section. A rule may not be adopted under this subsection until the board initiates a rule-making proceeding under subsection (a) of this section with respect to the substance. A rule adopted under this subsection must be vacated upon the conclusion of the rule-making proceeding initiated under subsection (a) of this section with respect to the substance.

(g) [(f)] Authority to control under this section does not extend to distilled spirits, wine, malt beverages, or tobacco as those terms are defined or used in Titles 66 and 26 RCW.



When marijuana had been found to have acepted medical use it was required to have the state schedule 1 test to be applied to see if it could be put back into schedule 1.RCW 69.50.201 did not apply since qualifying conditions were added.They simply could not have added qualifying conditions if Marijuana did not meet the criteria in 201.

The evidence was submitted ..the agency ruled marijuana had medical value for the addded qualifying conditions.They didn't just go to the agency DOH and say please can we add qualifying conditions.They submitted everything listed in 201.Furthermore the test says medical use in the United States.So the state is screwed.They have had marijuana in schedule 1 since 2000 without marijuana meeting the criteria to be in schedule 1.


STATE v HANSON

FindLaw | Cases and Codes

No. 24778-3-III

State v. Hanson



authorized by their physician. RCW 69.51A.005; Shepherd, 110 Wn. App. at 549.



Schedule I controlled substances are designated as such because either the state



board of pharmacy has found that it "(1) has high potential for abuse; (2) has no currently



accepted medical use in treatment in the United States; and (3) lacks accepted safety for



use in treatment under medical supervision" or "if the substance is controlled under



schedule I of the federal Controlled Substances Act by a federal agency as the result of an

international treaty, convention, or protocol." RCW 69.50.203.3 Marijuana is listed as a



schedule I controlled substance in RCW 69.50.204(c)(14).



The legislature listed marijuana as a schedule I controlled substance as part of the



Uniform Controlled Substances Act. Ch. 69.50 RCW; Seeley v. State, 132 Wn.2d 776,



784, 940 P.2d 604 (1997). The Uniform Controlled Substances Act then allows the board



of pharmacy to change the designation based on a number of statutory factors:



3

(a) The state board of pharmacy shall place a substance in Schedule I upon

finding that the substance:

(1) has high potential for abuse;

(2) has no currently accepted medical use in treatment in the United

States; and

(3) lacks accepted safety for use in treatment under medical

supervision.

(b) The board may place a substance in Schedule I without making

the findings required by subsection (a) of this section if the substance is

controlled under Schedule I of the federal Controlled Substances Act by a

federal agency as the result of an international treaty, convention, or

protocol.

RCW 69.50.203.

No one has asked the pharmacy board to revisit the classification and it has



apparently not seen fit to do so. RCW 69.50.204(c)(14); Seeley, 132 Wn.2d at 784-85.



The classification of marijuana as a schedule I controlled substance reflects a legislative



choice. State v. Martin, 14 Wn. App. 717, 721-22, 544 P.2d 750 (1976). One that



reflects a federal classification pursuant to an international treaty. 21 U.S.C. § 801(a)(2);



RCW 69.50.203; Martin, 14 Wn. App. at 721. The decision to change the classification,



then, is hardly a judicial decision. RCW 69.50.201; Seeley, 132 Wn.2d at 814.



Nor has the classification been repealed by implication since neither of the factors



has been satisfied. First, the Medical Marijuana Act does not cover the entire scope of



schedule I controlled substance designations nor was it meant to. RCW 69.51A.005,



.020; RCW 69.50.203, .204(c)(14). It simply provides that marijuana use "may" provide



some relief for some diseases. RCW 69.51A.005. And therefore use is permitted if



9



No. 24778-3-III

State v. Hanson



specific legislative procedures are followed.



Second, the Medical Marijuana Act only provides an affirmative defense to the



drug crime. RCW 69.51A.040(1). It is not, then, inconsistent with the schedule I



classification. An affirmative defense does not negate the elements of a crime. It excuses



the conduct. State v. Ginn, 128 Wn. App. 872, 878, 117 P.3d 1155 (2005).



Finally, on this point the legislative intent is clear: "[n]othing in this chapter shall



be construed to supersede Washington state law prohibiting the acquisition, possession,



manufacture, sale or use of marijuana for non-medical purposes." RCW 69.51A.020.



We do not read the Medical Marijuana Act and the Uniform Controlled Substances



Act as inconsistent. Indeed, the Medical Marijuana Act never addresses whether



marijuana has a currently accepted medical use. It only states that some patients may

benefit from medical marijuana. RCW 69.51A.005.4 It also states that it may be



beneficial for certain conditions. Id. There has been no specific finding in the Medical



Marijuana Act that marijuana actually benefits patients who suffer from certain



conditions, or that it is now safe for use in treatment. See id.