The Elusive Definition of a Sixty-Day Supply.

One of the most frequent issues in medical marijuana cases is what constitutes a sixty-day supply. RCW 69.51A.040(2)(b) specifies that a qualifying patient may possess no more medicine than is necessary for a sixty-day supply; see RCW 69.51A.040(2)(b). It does not, however, give any indication of what constitutes a 60-day supply. Establishing what constitutes a sixty-day supply is complicated by the fact, which many believe: that to protect themselves legally, doctors should not put amounts on recommendations.

While the First Amendment protects a doctor’s right to discuss the potential benefits of marijuana use with his/her patient (Conant v. Walters, 309 F.3d 629 (2002)), specifying recommended amounts has the potential of being interpreted as an attempt at an illegal prescription, something that could cost a doctor his/her license or subject him/her to prosecution for conspiracy to distribute.

Prosecutors are likely to argue that without an amount on the recommendation, it is impossible to tell what constitutes a sixty-day supply. They will likely point to State v. Shepherd, 110 Wn. App. 544, 552 (2002). In its decision, the Division Three Court of Appeals states: “While nothing in the act requires the doctor to disclose the patient’s particular illness, there must, nonetheless, be some statement as to how much he or she needs.”

At first, this seems to suggest that the doctor must make a statement as to the amount to be used and the prosecutors will argue that such a statement must be in the recommendation. However, we find that “Shepherd” determined little, if at all, how to prove compliance with legal supply limits. Shepherd was a “stipulated-facts” bench trial, in which the defendant’s only evidence of compliance with the supply limit was a report by the Public Safety Committee of the Oakland City Council, describing a method for determining the amount of usable medicine.

Thus, the defendant provided no evidence regarding his own use; and because the facts were stipulated, there was no opportunity to present expert testimony, which may have qualified or supplemented a “statement” or otherwise persuaded a jury. For defense purposes, the Shepherd case is essentially nullified by State v. Ginn 182 Wn App. 872 (2005), review denied, 157 Wn.2d 1010 (2006). In Ginn, the Division Two Court of Appeals reviewed a case, in which the trial judge had denied the defendant the right to present the medical marijuana defense at trial. In its review, the court found that the defendant was wrongly denied the defense. When the defendant presents evidence for each element of the defense that, viewed in the light most favorable to the defendant, might lead a reasonable jury to find in her favor, the defendant must be allowed to present the defense at trial: “The jury, not the judge, must weigh the proof and evaluate the witnesses’ credibility.” Once you reach trial, the doctor’s testimony must be admitted, and the test becomes less formalistic.

How then to establish that the defendant is within the supply limit? It is best if he/she keeps a log of daily use. Should the patient ever need to, he/she may introduce it into evidence without being put on the stand. If not available, one may have to provide an affidavit of daily dosage. If testifying, a patient can provide this information in testimony. It is a good idea to have the doctor testify, as well. While the doctor must take care to stay within federal law, regarding recommendation of amounts, the physician may testify as to what, in his/her expert opinion, is a typical or average dose, or may simply confirm the amount defendant claims to use is a reasonable amount for the treatment of the defendant’s condition. One study of reasonable or necessary dosage patient and doctor may find particularly helpful in buttressing such testimony is "Medicinal Cannabis: Rational Guidelines for Dosing" by Greg Carter, MD.