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.
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.
By Tom Callis
Reporter Tom Callis can be reached at 360-417-3532 or at email@example.com.