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September 29, 1970
Honorable Joe Haussler
State Representative, District 2-A
P.O. Box 949
Omak, Washington 98841
Cite as: AGLO 1970 No. 123
By letter previously acknowledged you have requested our advice as to the present state of the law governing the possession of marijuana by members of the medical profession.
Prior to the enactment of chapter 256, Laws of 1969, Ex. Sess., the possession and use of marijuana was covered by the provisions of the uniform narcotic drug act, chapter 69.33 RCW. This act, which is a comprehensive narcotic drug control act, makes the possession of those drugs which are regulated by the act illegal where the drugs are possessed, administered or dispensed in a manner other than that authorized by the act. See, RCW 69.33.230. And more specifically, RCW 69.33.260 (4) places the following restriction upon a physician or any other person with respect to the possession or control of narcotic drugs:
"Possession of or control of narcotic drugs obtained as authorized by this section shall be lawful if in the regular course of business, occupation, profession, employment, or duty of the possessor."
We are advised that at the present time there is no legitimate medical use for marijuana, other than for experimental purposes. Accordingly, were the possession and use of marijuana still controlled by the uniform narcotic drug act, the lawful possession of marijuana by a physician would be greatly restricted if not totally precluded.1/
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However, with the enactment of chapter 256, Laws of 1969, Ex. Sess., supra, the regulation of marijuana was transferred from the uniform narcotic drug act to another act, commonly known as the dangerous drug act. See, chapter 69.40 RCW. The provisions of this act are considerably less comprehensive than are those of the uniform narcotic drug act, and in so far as the subject of "possession" is concerned the dangerous drug act, in RCW 69.40.061, merely states that:
"It shall be unlawful for any person to possess any of the drugs described in RCW 69.40.060, as amended from time to time, or any other drug which is required by any applicable federal or state law or federal regulation or Washington state pharmacy board regulation to be used only on prescription, except upon the order or prescription of a physician, surgeon, dentist or veterinary surgeon duly licensed to practice in the state of Washington: Provided, however, That the above provisions shall not apply to the possession by drug jobbers, drug wholesalers and drug manufacturers, to registered pharmacists or to physicians, dentists or veterinary surgeons." (Emphasis supplied.)
Because of the proviso contained in this section, there now exists, in effect, a blanket exemption from any state regulatory statutes of the possession of marijuana by physicians or any of the other persons referred to in the proviso. It is for this reason, presumably, that the prosecuting attorney of your county has indicated a considerable degree of reluctance to proceed in attempting to charge any licensed physician with the illegal possession of marijuana.
This, then, in brief summary form, is the present state of the law within this jurisdiction regarding the possession of marijuana by licensed physicians. If you are desirous of introducing legislation to change this situation, we would be most happy to be of assistance to you in drafting the appropriate amendments ‑ either to the uniform narcotic drug act or to the dangerous drug act.
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It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Edward B. Mackie
Deputy Attorney General
*** FOOTNOTES ***
1/In addition to the foregoing, it should be noted that RCW 69.33.280 (1) states that a physician or dentist may only prescribe narcotics in good faith and in the course of his professional practice.