Hunter uncovers 180 medical marijuana plants, spokane patient gets raided...

[jamessr]

If he's got the money for lawyers he could try to pull off that argument. Outdoor has its season to grow Meds so if he says he was trying to get off a years worth of meds in one load.

EXACTLY !!:thumbsup:imp:

Even the 5 lbs. was covered, as a yr. supply in one run load outdoor is 9 lbs per yr. at the rate of 1.5 lbs per 60-days...and most likely would take 30 plants( concidering the loss factor rate, bugs, etc..) per 60-days to produce the needed medicine for a whole yr...

[justpics]

The 60 day supply rule was conceived using outdoor as the guide for yield per plant and how many plants a patient would need. WA state law basically assumes you have a million dollars to build a state of the art greenhouse on your own private land.

Chris Conrad's Marijuana Yields and Dosing was their main source for why a patient needed 6 "mature" plants to maintain 24 ounces. They then changed that to 15 plants in any state, but claimed that this was not a substantive change.


The reason I am saying this, is because the state obviously doesn't recognize the outdoor grower's restrictions on growing only during certain seasons. Otherwise indoor specific plant limits would have been used, and the average plant size for determining the plant limit wouldn't have been assumed to be 10 square feet. Anyone that was at the 60 day supply hearing should know what I am talking about.

If they are going to create a 60 day supply using outdoor grow data, then that would tell me they don't feel outdoor growers are entitled to maintain anything more than a 60 day supply.


But regardless of all that, what matters is that your affirmative defense only applies to a 60 day supply. The Law doesn't say, "unless where a patient needs a 1 year supply due to growing conditions"...


IMO this patient's only hope is to in fact prove that he was in possession of no more than a 60 day supply. And he will need to show, "evidence of necessary medical use" to do that.

[jamessr]

The 60-day supply issue was completely thwarted by leo and all the info. you speak about went out the window when State v. Barber was applied( they forgot to mention it didn't they? wonder why?)...which is where the 15 plant any size came from since Mr. Conrads san didn't apply to any wa. cases which a patient was convicted and caused harm by conviction, which is totally contrary to rcw 69.51A et. seq....

You obviously are viewing things narrowly now aren't you because a charge for controlled substances is a strict liability crime with no defenses...

This guy obviously was within the bounds of a non-discriminatory law, or non-discriminatory applications...of our 60-day supply laws...

So as I understand ur point here is regardless of this patients medical needs he must suffer his ailments because he can't do a 60-day supply outside...as I said, the san is irrelevant here.

The relevant aspects of our laws are what??

[jamessr]

rcw 69.50.308 (e) is the proper motion to file in this case..medical exception to the strict liability law charged under rcw 69.50 VCSA...

Once that is done it is upto the state to prove his use was "RECREATIONAL" and not for medical purposes...burden shift!!

The state must have someone who did a hand to hand transaction to claim this exception don't apply(sales), then if they mount that burden, the over a 60-day supply or even enter it( the amount) in the case becomes a hill climb...it's all about burden shifting my friend...

[justpics]

69.50.308 is entitled "Prescriptions", doesn't seem relevant to MMJ. Either way, 308 e is; "(e) A valid prescription or lawful order of a practitioner, in order to be effective in legalizing the possession of controlled substances, must be issued in good faith for a legitimate medical purpose by one authorized to prescribe the use of such controlled substance. An order purporting to be a prescription not in the course of professional treatment is not a valid prescription or lawful order of a practitioner within the meaning and intent of this chapter; and the person who knows or should know that the person is filling such an order, as well as the person issuing it, can be charged with a violation of this chapter."


Which I really don't see how that is applicable here.




I don't see RCW 69.51A offering any protection here for a 365 day supply, that's what I was saying. Maybe he could try some sort of medical necessity claim, but that seems to me like it would be totally different than an affirmative defense under the medical marijuana laws, and very tough to pull off.


The burden for overcoming the presumption of 24 ounces is, "evidence" of necessary medical use. That seems like a smaller hurtle to me, because if his doctor will testify to that effect, what more evidence could you need?

It would also open up an interesting precedent regarding a doctor saying a patient needed more (up to 180 plant 5 pounds), and maybe the prosecutor wouldn't want to see that happen...might incentivize him to plea it out more favorably if he could get his doc to take the stand on his behalf.

[jamessr]

69.50.308 is entitled "Prescriptions", doesn't seem relevant to MMJ. Either way, 308 e is; "(e) A valid prescription or lawful order of a practitioner, in order to be effective in legalizing the possession of controlled substances, must be issued in good faith for a legitimate medical purpose by one authorized to prescribe the use of such controlled substance. An order purporting to be a prescription not in the course of professional treatment is not a valid prescription or lawful order of a practitioner within the meaning and intent of this chapter; and the person who knows or should know that the person is filling such an order, as well as the person issuing it, can be charged with a violation of this chapter."


Which I really don't see how that is applicable here.




I don't see RCW 69.51A offering any protection here for a 365 day supply, that's what I was saying. Maybe he could try some sort of medical necessity claim, but that seems to me like it would be totally different than an affirmative defense under the medical marijuana laws, and very tough to pull off.


The burden for overcoming the presumption of 24 ounces is, "evidence" of necessary medical use. That seems like a smaller hurtle to me, because if his doctor will testify to that effect, what more evidence could you need?

It would also open up an interesting precedent regarding a doctor saying a patient needed more (up to 180 plant 5 pounds), and maybe the prosecutor wouldn't want to see that happen...might incentivize him to plea it out more favorably if he could get his doc to take the stand on his behalf.

Well justpics,

If a person is charged under any VCSA for "any" controlled substances if falls under the wa. csa located in rcw 69.50..when charged with a violation of the csa, for example say marinol for instance..this under rcw 69.50.308(e) is a prescription schedule 3...

So the crux here is did you posses this substance with the permission of a licensed healthcare practitioner for a medical purpose and is this a lawful order of a practitioner, and in order to be effective in legalizing the possession of controlled substances, must be issued in good faith for a legitimate medical purpose by one authorized to prescribe the use of such controlled substance.

This is how the ball bounces...notice it says prescription "or" a lawful order of a practitioner...well an authorization is exactly that...read the healthcare practitioners section of their protections..it has the same lingo...

One is a direct "STATUTORY" defense (rcw 69.50.308(e)), the other is an "AFFIRMATIVE DEFENSE"...A STATUTORY DEFENSE BURDEN IS LESS THAN A AFFIRMATIVE DEFENSE BURDEN...tis why when you have a actual script for your pills, liquid and the like...the cops, prosecutors and the court don't waste the peoples time with going to a "trial" in which the trier of fact must here the defense...

Elementary!! No one has used this ave, why you ask? Because it shuts down the money flow to all the learned professionals who are making bank(retirement money)on us sick and dying...we are their food!! Would you give up the food on your table for the rest of your life??

The other is 69.50.302 which is the ultimate user statute..which is another statutory defense...not an aff. def.

The section you mention is exactly that, a medical necessity defense...but, our appellate courts have ruled that the MUMA has replaced that defense by "IMPLICATION"...So even though the plain language give the presumption of a medical necessity, that defense is not available by "IMPLICATION".

So you see the sandwich?? Got us coming and going...with this aff. def. crap and how the courts have interpreted our medical rights to be free from pain and suffering...

Yes, if he can get in front of a jury with the right "advocate", then he stands a chance...I say hit the iron while it is hot...motion under 69.50.308(e) first, then if the court turns it down, appeal to the wa. supreme ct. for review..if they turn it down, then one still has the aff. def. to bring forth 14 days before trial...PLAY THE DAMN GAME!!!

[jamessr]

Notice here the court states in caselaw in State v. McCullum it says that self-defense is a statutory defense? In state v. Fry the supreme ct said it is an Aff. Def. in the walla-walla case of assault which is completely wrong... read up on trespass statutes in other jurisdictions and you will see exactly what I am saying here...hell, even do it here in wa....it will shock you as it did me to find out these lerned professionals was taking us patients for a ride for their benefit...

We got some slick learned professionals here in wa. working we the people pretty hard here to keep us paying for their food, cars, houses, hookers, etc..when they can easily do the proper motions to protect us the patients...

It is a statutory defense to the crime of criminal trespass that "the actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him to enter or remain." RCW 9A.52.090(3). Statutory defenses to criminal trespass negate the unlawful presence element of criminal trespass and are therefore not affirmative defenses. State v. R.H., 86 Wn. App. 807, 812, 939 P.2d 217 (1997). [***11] Further, the burden [**738] is on the State to prove the absence of the defense when a defendant asserts his or her entry was permissible under RCW 9A.52.090(2) because that defense "negates the requirement for criminal trespass that the entry be unlawful." State v. Finley, 97 Wn. App. 129, 138, 982 P.2d 681 (1999). Thus, once a defendant has offered some evidence that his or her entry was permissible under RCW 9A.52.090, the State bears the burden to prove beyond a reasonable doubt that the defendant lacked license to enter. See, e.g., State v. McCullum, 98 Wn.2d 484, 490, 656 P.2d 1064 (1983) (self-defense is a statutory defense and, as such, once properly raised, the absence of self-defense becomes another element of the offense which the State must prove beyond a reasonable doubt).

[jamessr]

Necessityâ?� is a common law defense with limited application. See State v. Jeffrey, 77 Wn. App. 222, 224-25, [*231]
889 P.2d 956 (1995); State v. Diana, 24 Wn. App. 908, 913-14, 604 P.2d 1312 (1979); 11 Washington Pattern Jury Instructions: Criminal 18.02, at 63 (2d ed. 1998) (WPIC). It is available â??when circumstances cause the [defendant] to take unlawful action in order to avoid a greater injury.â?� Jeffrey, 77 Wn. App. at 224; WPIC 18.02. The defendant must not have caused the threatened harm, and there must be no reasonable legal alternative to breaking the law. Jeffrey, 77 Wn. App. at 225; WPIC 18.02. The defendant must prove the defense by a preponderance of the evidence. Jeffrey, 77 Wn. App. at 225; WPIC 18.02.

¶8 Comparing the two defenses, the statutory defense is a specific iteration of the principles underlying the necessity defense. In this sense, the statutory defense appears to displace the need to give a general necessity defense instruction. Thus, giving an additional necessity defense instruction would necessarily be redundant, if not confusing. Overall, the statutory defense [***5] was sufficient for Mr. White to argue his case theory. But we need not dwell upon legislative intent or the differences between the two defenses because, in any event, the trial evidence does not support giving a general necessity defense instruction in Mr. White's case over the statutory defense.

[jamessr]

Justpics, here is the case in which the medical necessity defense was extiguished by the court under State v. Butler.

The law is well settled that if a statute is inconsistent with the common law, we deem the statute to abrogate the common law. State v. Pub. Util. Dist. No.1 of Douglas County, 83 Wn.2d 219, 517 P.2d 585 (1973); Harmon v. Dep't of Soc. & Health Servs., 83 Wn. App. 596, 922 P.2d 201 (1996). Such is the case here. We hold, therefore, that the Medical Use of Marijuana Act affirmative defense superseded the common law medical necessity defense.

So as you see, the courts will not allow a medical necessity defense under the wac code as written...it goes to the jury to decide, not the judge.

All amounts are to be decided by a jury period.

Now here is why it is a statutory defense and not an Aff. Def. under rcw 69.50.308(e). Burden shifting is the key here....and Mcbride fails here...

Due process requires that the State prove every element of an offense beyond a reasonable [***7] doubt; if a defense negates an element of the charged [**220] crime, the State has the constitutional burden to prove the absence of the defense beyond a reasonable doubt. See, e.g., State v. Lively, 130 Wn.2d 1, 10-11, 921 P.2d 1035 (1996).

WA[5][5] The public premises defense applies when the defendant has "complied with all lawful conditions imposed on access[.]" RCW 9A.52.090(2). If a person so complies, that person is "privileged to . . . enter" and there is no "unlawful" entry. See RCW 9A.52.080(1); RCW 9A.52.010(3). The defense therefore negates an element of the crime, and cannot be deemed an affirmative defense because to do so would relieve the State of its burden of proof. See, e.g., Lively, 130 Wn.2d at 10-11.

[justpics]

A judge can deny you your affirm def. Too