Washington Medical Marijuana Patient Granted Re-Trial for Medical Defense

Joyce man to get retrial in medical marijuana case

By Tom Callis
Peninsula Daily News

Article published Aug 14, 2009

In a move his attorney called precedent-setting, a medical marijuana
provider who lived near Joyce will get a new trial after the state Court
of Appeals overturned his conviction for growing marijuana and ordered a
new trial.

Earl Gordon Otis Jr., 45, was sentenced in Clallam County Superior Court
on May 1, 2008, to four months in prison for growing 75 marijuana plants
at his home at 3070 Eden Valley Road.

No retrial date has been set.

The issue the appeals court addressed in its Tuesday ruling was whether
Otis could use his status as a man's medical marijuana provider as a
defense argument, according to court documents.

The argument was not allowed during the trial due to the large amount of
marijuana grown -- state law only allows a 60-day supply to be produced
-- and because the court felt a doctor's letter authorizing the patient
Otis supplied to use the drug was not sufficient, since it didn't refer
directly to state law.

The appeals court determined that the letter was sufficient and that the
amount of marijuana grown shouldn't restrict a defendant from using the
role as a provider of medical marijuana, known as a caregiver, as a
defense.

Clarifies law

Attorneys specializing in marijuana law say the decision will affect
medical marijuana cases by clarifying a vague 10-year-old law,
especially when it comes to what a doctor needs to write in an letter
authorizing the use of the drug.

"This is a really big deal," said Otis' attorney, Jodi Backlund of
Olympia, adding that it will set a precedent.

"The state before has been really nitpicking and arguing consistently"
that a letter had to refer directly to the law."

Seattle attorney Jeff Steinborn, who has 40 years of experience in
marijuana-related cases, agreed.

"Well, it's the first time that the Court of Appeals actually read the
preamble to the medical marijuana statute and given it any meaning,"
said Steinborn, who is also a board member of the National Organization
for the Reform of Marijuana Laws.

"Individual caregivers can now be a bit more confident . . . that the
paperwork is going to work."

The trial and appeal did not address the legitimacy of the use of
marijuana for medical purposes for the man Otis was supplying.

The doctor authorized the use of marijuana to increase the man's
appetite.

Clallam County Deputy Prosecuting Attorney Brian Wendt said the
prosecution may not have challenged the doctor's letter if the law had
been more clear on what needs to be written.

"We could have done it differently, " he said.

Prior to the higher court's opinion, Wendt said, "The affirmed defense
did not seem appropriate or relevant."

How much supply

Steinborn said the state's medical marijuana law, passed by citizens
initiative in 1998, remains vague on how much marijuana is considered a
60-day supply.

Typically, the rule of thumb is 15 plants, he said.

Otis was growing five times that amount.

If convicted again for the growing operation, he would receive credit
for the previous sentence, which he has served already.

Another marijuana law attorney, Kurt Boehl of Seattle, said it's typical
for medical marijuana users to buy the drug from growers if they are too
sick to grow it themselves.

All it takes is a letter from the user that authorizes another person to
grow it for them for such a transaction to become legal, he said.

"They don't need to notify the state," Boehl said, adding that a
provider needs to be able to provide the letter to law enforcement if
asked.

"If the state was a little more progressive thinking, they could
legalize some sort of dispensary and tax it."

Another stipulation in the law says that a provider can grow marijuana
only for one person, he said.

Otis' roommate, Leann McCarty, 42, was also convicted for the marijuana
growing operation. Her appeal is pending.

________

Reporter Tom Callis can be reached at 360-417-3532 or at
tom.callis@peninsul adailynews. com.

http://www.peninsul adailynews. com/article/ 20090814/ news/308149988