## Facts

- John Wilson had serious medical conditions, including a spinal problem, and obtained a physician letter stating marijuana’s benefits “may outweigh” its risks.
- Because Wilson could not grow marijuana, Arthur C. Shepherd cultivated and possessed marijuana for Wilson as his primary caregiver.
- Police seized marijuana plants from Shepherd’s property; Shepherd unsuccessfully sought their return and later faced additional seizures.
- The State charged Shepherd with manufacturing marijuana, but the charge was amended by stipulation to felony possession of marijuana.
- In a bench trial, Shepherd asserted the Medical Use of Marijuana Act affirmative defense as a primary caregiver, claiming compliance with the statutory sixty-day supply limit.
- The trial court rejected the defense on the ground that the physician letter was deficient because it used “may outweigh” rather than language indicating the benefits “would likely” outweigh the risks; Shepherd was convicted.

## Issues

1. Whether the Medical Use of Marijuana Act requires a physician’s written authorization to state that marijuana’s benefits “would likely outweigh” the risks, or whether “may outweigh” can satisfy the authorization requirement.
2. Whether an alleged primary caregiver who grows or possesses marijuana for a qualifying patient is entitled to present the Act’s affirmative defense when the patient has a qualifying physician authorization and the caregiver claims compliance with the sixty-day supply limit.

## Decision

- The Court of Appeals reversed the conviction and remanded.
- The court held the trial court erred by construing the statute to require specific probability wording in the physician’s authorization.
- A physician statement that marijuana’s benefits “may outweigh” the risks can satisfy the statutory authorization requirement.
- Because the authorization was not categorically invalid, Shepherd was entitled to present the primary-caregiver affirmative defense, with the trier of fact to determine whether the statutory elements (including the supply limit and caregiver status) were proved.

## Legal Principles

- The Medical Use of Marijuana Act provides an affirmative defense (not categorical immunity) for qualifying patients and designated primary caregivers who meet statutory conditions, including a sixty-day supply cap.
- Statutory medical authorization turns on the substance of the physician’s medical judgment that marijuana may be appropriate for the patient, not on a mandated verbal formula.
- A court may not bar a defendant from presenting the Act’s affirmative defense based solely on hyper-technical parsing of the physician’s wording when the statement substantively addresses benefits and risks.
- When a defendant produces evidence supporting the statutory elements for the caregiver defense, the factfinder must be allowed to assess whether those elements are satisfied.

## Conclusion

The appellate court reversed Shepherd’s marijuana-possession conviction because the trial court improperly treated a physician’s “may outweigh” authorization as legally insufficient and, on that basis, prevented Shepherd from presenting the Medical Use of Marijuana Act affirmative defense available to a qualifying patient’s primary caregiver.


State v. Shepherd, 110 Wash. App. 544, 41 P.3d 1235 (Wash. Ct. App. 2002)