Author Archive

Why do we have so many hate crimes in the Inland Northwest?  It is not an accident of geography or some poison in our drinking water.  Partnersagainsthate.org explains the cause of hate crimes succinctly: “Hate crimes often occur as a result of prejudice and ignorance. A lack of understanding about differences among people and their traditions contributes to fear and intolerance. Left unaddressed, these sentiments may often lead to acts of intimidation and ultimately hate-motivated violence.”  This website isn’t discussing the Inland Northwest in particular, but the description certainly fits our area, doesn’t it?

I thought of this recently when Stevens County resident Kevin Harpham was arrested and charged with planting the bomb at last month’s Martin Luther King day parade.  While the people of the Inland Northwest don’t march around with swastika armbands or white hoods, we certainly don’t speak out against racism much either.  Case in point, remember the white supremacists picketing the Mexican food truck on and off all last winter?  There should have been a zillion people out there conducting a counter-protest or at least buying some food out of solidarity.  This didn’t happen despite the keen efforts of several people.  Likewise, look at the shabby treatment of Haitham Joudeh two years ago. His truck was spray-painted by thugs, and county commissioners Rick Currie, Todd Tondee, and Richard Piazza pretty much caved in to a racist crowd who wanted to ruin Joudeh and run him out of town. I wrote  then of the failure of decent people to stand behind Mr. Joudeh.  A year ago, I blogged about community leaders creating an environment for hate crimes when they foster an attitude 1) that is suspicious of outsiders, 2) that applies different standards to newcomers, and 3) when they do not sufficiently condemn the bigoted statements of their constituents. About two years ago the local NAACP president warned Spokane’s leaders that more needed to be done by leaders to fight institutional racism or “Spokane and Coeur d’Alene one day will become a mecca for those who would use ropes to make nooses and spread hate literature.”  We should consider her words now.

It seems like part of the problem is the lackluster police response to hate crimes.  A Post Falls woman complained that when people spray painted swastikas on her car, the police asked her if she even wanted to “press charges”.   See story.  In the case of Kevin Harpham, the matter is being handled by federal prosecutors.  It seems like the feds are always interested in these sort of white supremacist types.  Once, when I was a prosecuting attorney in state court, I was actively pushing the federal prosecutors to take over a felon-firearm case I had.  I didn’t have any luck in getting the feds to take it until we found a membership card in the suspect’s wallet to a white supremacist group.  Well, as you can guess, the federal prosecutors became more interested when they learned of the suspect’s membership in hate groups.

I sometimes read about different hate crime prosecutions in the blog Crime and Consequences.  That blog reported yesterday that a federal judge imposed a 6-month sentence for an instance of burning a cross in a persons yard when no physical injury resulted.  Most law blogs are written by criminal defense attorneys, but Crime and Consequences is by lawyers writing from the public’s perspective as a whole.  Another law blog worth checking out (that is not from the defense perspective) is D.A. Confidential, by a Texas prosecutor.

Asuris Northwest Health Insurance sucks!  I will tell you why.  Like any health insurance company you pay in tons of money each month, and it seems like there are always huge deductibles and hardly anything is covered.  So there is that.  But there is one particular incident with Asuris that pushed me over the edge.  My young son went over to a friend’s house to play and received a minor injury at their house. My wife was out of town, so I figured I better err on the safe side and take my son to see a doctor.  The problem was it was just after 5:00 so the medical clinic was closed, so I took my little one to the emergency room and offered up my Asuris Insurance card.  I figured Asuris would pay at least part of the bill.  Well the problem arose when Asuris Northwest Health wouldn’t pay anything until I gave them a statement as to where the injury happened, and who owned the property.  They sent me some lengthy accident-injury questionnaire indicating that they wanted to go after the owner of the premises where my son was injured.  Asuris wrote: “If you have been injured on someone else’s property, even through no fault on their part, the property owner often carries No-Fault Premise Medical insurance that would cover your medical expenses up to a specific dollar amount….”  In other words, Asuris didn’t want to pay, and rather wanted to go after my son’s friends’ parents even though there was “no fault on their part.”  That’s really great Asuris, you want me to sour the friendship of kindergarten playmates by shaking the property owners down and raising the rates of their homeowners insurance.  So I wrote a letter explaining this to Asuris Northwest, and they never dignified my letter with a response.  I paid for everything out of pocket.  That is why you suck, Asuris Northwest.  I wouldn’t recommend you to anybody.

In the early days of medical marijuana dispensaries, the risk was all about possible arrest and prosecution.  Judging by recent news stories this week, the greatest threats now seem to be from: 1) the Internal Revenue Service, 2) new regulations and rival dispensaries, and 3) gangsters who rob dispensaries.

Taxation of Marijuana Dispensaries

In 2009, after Obama took office, his attorney general Eric Holder announced that the federal government would not prosecute marijuana dispensaries that were operating legally under State and local laws.  Dispensary owners probably breathed a sigh of relief.  Little did they know that they would face perhaps larger problems from the IRS.  The IRS is currently auditing every dispensary across California, and is apparently disallowing a lot of deductions that many took for granted.  Here is the issue: Under section 280E of the federal tax code, people selling controlled substances in violation of federal law can’t claim any tax deductions for their “business”.  This statute was intended so that Al Capone types would have to pay taxes on their gross, and they can’t deduct all their “expenses” in figuring their “profit”.  The “expenses” of selling controlled substances means, the initial cost of the drugs from the suppliers, transportation costs, the costs of paying employee dealers, etc. This makes sense, I suppose, when going after black market criminal enterprises, but this makes less sense when going after gray-market medical marijuana dispensaries that are trying their best to serve patients.  Some of the dispensaries are faced with  millions of dollars of past due taxes.  I blogged last December about the Washington Department of Revenue gouging marijuana dispensaries in Spokane.

New Regulations & Rival Marijuana Dispensaries

In Colorado, the number of dispensaries operating state wide grew to over a thousand after the Obama administration indicated that they would not be prosecuting dispensaries.  These 1000 dispensaries are now facing increased regulation from the Colorado legislature.   In Colorado, the legislature banned convicted felons from operating dispensaries, and then began requiring dispensaries to start growing at least 70% of their own marijuana.  In Los Angeles today, the city announced that they would be shutting down 140 dispensaries for the failure to follow the city regulations.  Meanwhile, dispensary owners from Spokane to Seattle are bracing themselves for SB 5073, also known as the Kohl-Welles bill, which would outlaw just about every dispensary in Washington that exists today.  With all these threats, you would think that the dispensaries would be joining together.  In fact, the dispensaries seem to be fighting each other, or at least their customers.  Try googling “Spokane Medical Marijuana”.  What you see is a bunch of online “reviews” where people are just trashing dispensaries.  You really don’t see the same thing in the Seattle listings.

Robbery of Medical Marijuana Dispensaries

If a visit from the IRS isn’t scary enough, check out this video footage of a Washington medical marijuana dispensary getting robbed.

The police reports in the case indicated that the victim tried to spray the robbers with mace but had difficulty in using the canister. The robbers were known to the victim because they were patients in the past. About 10 pounds of marijuana was stolen.

What do you think of all this?  If you owned a dispensary, would you be looking for another line of work?

For the last three years, there has been a lot of news coverage about the pack of wolves that moved from British Columbia down to Okanogan County, Washington.  Poaching has begun and many cases will be coming to court, testing the views of jurors on such subjects.  Let’s discuss the background, and th the problems courts will face.

Wolves in Washington State

There have always been sporadic sightings of individual wolves in North Central Washington, but in the summer of 2008, the Washington State Department of Fish and Wildlife announced that a pack of wolves had made their home in the Methow Valley. See article. Although Washingtonians as a whole may have been pretty excited, most of the people of Okanogan County were hesitant to say the least.  Many ranchers wondered about the potential losses to their livestock, and hunters worried about fewer deer and elk.  Now, two years later it has been clear that not everyone has welcomed the wolf pack, and there is increasing evidence that certain people are trying to kill the pack off.  There is a growing sense of concern across the state that this pack might be lost.

Okanogan Wolf Killing

Last week I had court in Okanogan County, where I often go in my practice as a criminal defense lawyer.  There were filmmakers in court from the BBC doing a documentary about the wolfs.  Apparently, on the docket that day there was a defendant accused of shooting a wolf.  People are watching and waiting to see what comes of the investigation of Tom White and his son Bill White.  The Washington State Fish & Wildlife Agents executed a search warrant at the Whites’ home after they were alerted to a suspicious Fed Ex package that contained a wolf pelt.  The FedEx employee called authorities after noticing that some blood was leaking through the packaging.   According to news reports, the agents confronted Tom White about the shooting of wolves and he indicated that he shot the wolf because it was caught in a barbed wire fence. The agents claim that during the raid on White’s home they found a photo of Tom White posing with the wolf, and the photo showed a wolf with damage done to its paw consistent with a trap.

Rewards for Tips on Wolf Shootings

More recently, State officials and conservationists have become worried about the prospects of the survival of the pack.  A female wolf was being tracked with a radio collar last year until the signal was lost.  Because the radio signal stopped so abruptly, foul play was suspected.  To help deter poaching, Mitch Friedman, the executive director of Conservation Northwest announced a reward of $7500 for information leading to the conviction of wolf poachers.  In an online story by K.C. Mehaffey of the Wenatchee-World, Friedman explained that he is concerned about the lack of prosecution: “I don’t know whether it is a matter of prioritization given in prosecutors’ offices, or whether these cases are inherently more difficult to prosecute because they happen in the woods.” Likewise, Mike Cenci, of the Department of Fish and Wildlife explained: “Some counties are very aggressive in pursuing natural resource law violators, and others, not so much.” Cenci explained that he has to continually “educate prosecutors’ offices with respect to the impacts that environmental or natural resource crime can have.”

Washington State Laws on Wolf Hunting

In my experience, prosecutors often struggle with the intricacies of our State’s fish and wildlife code.  The regulations and statutes on the subject are so complicated that it is often hard to even figure out the best way that the crime should be charged. Additionally, many of these poaching cases occur in remote areas of our national forests, and this often means that the venue for the trial will be in rural counties such as Okanogan County, Ferry County, Stevens County etc.  In such locales the sensibilities of the jurors can be startlingly different than in areas like King County.  Let’s face it, the way we view animals is largely the result of our culture and our upbringing.  In rural locations, people usually view bears, mountain lions, and wolves as a nuisance at best, and often times as an outright danger.  The jurors often times are the same people who have lost livestock or pets to carnivores.   Additionally, while attacks on humans by carnivores seems like remote concerns, these attacks figure centrally on the minds of local jurors.  Parents know there are documented attacks on children recently in North Central Washington.  In 2003, a Canadian boy was attacked while hiking in Stevens County.  See here.  In 1999, a cougar nearly killed a 4-year-old boy in Barstow, Washington, in Ferry County.  The child required 200 stitches to close head and neck wounds.  See here.  So, in these counties jurors just don’t seem to care really if someone is shooting bears, or cougars, or wolves.

Wolf Killing Trials

Let’s remember something about jury selections – it is largely a numbers game.  A jury for a felony poaching case in the State of Washington is composed of 12 people.   Let’s talk about how those 12 are selected.   On the morning of trial, the prosecutor and defense lawyer show up and are presented with a list of about 50 or 60 prospective jurors.   The lawyers are then free to ask the prospective jurors any questions they like.  A lawyer can quickly figure out who belongs to hunting groups, conservationist groups, environmental groups, the cattlemen association.  A lawyer can likewise ask prospective jurors who has lost pets or livestock to carnivores, or who has close friends or neighbors who have lost pets or livestock.  The standard jury questionnaire also provides information on how long a juror has lived in the county, thus providing crucial information on the person’s upbringing.   Under the law, for a jury of 12, each lawyer is given 6 peremptory strikes, meaning he or she can get rid of any juror for any reason.  So if a prospective juror is a self-described animal lover, or a conservationists, or never had so much as a fishing license, or just moved to the area from a major city, that juror is simply sent home by the defense.  A defense attorney can send all such jurors home with peremptory challenges, because in a rural jury pool of 40 people, no more than 6 such jurors exist.  It is important to note that in King County, the opposite is true, and the prosecutors send the hunters and sportspersons of  rural King County home, leaving the defendant to be judged by suburbanites and Seattle residents.

The difficulties of prosecutions in these cases are exacerbated by frequent investigations by Fish and Wildlife.  I was a prosecutor in Ferry County for about 7 years, and have worked as defense lawyer for 8 years since.  I have prosecuted or defended numerous cases involving bears and cougars, and also the trafficking of hides, or parts of an animal such as a bear gall.  Sometimes as a prosecutor I was frustrated by incomplete investigations, and often times these Fish and Wildlife agents seem to have a tin ear when it comes to how their investigations will look to jurors.  There seems to be a lot of overreaching on the part of the investigators, and jurors often will pick up on that.  Prosecutions for these sort of poaching cases is often times extremely time consuming and complex, and the laws are quite challenging even for the judges and the prosecutors to figure out.  For example, let’s look at the case of State v. Yon out of Spokane in 2008.  Fish and Wildlife agents conducted an elaborate sting operation against Jason Yon for allegedly buying bear gall bladders.  Apparently, the agents believed that the buying of bear gall bladders was a felony the whole time, and expended a great amount of resources.  Jason Yon’s attorney Richard Lee thought otherwise, and tried to “educate” the F&W on the law.  The laws on this crime were so complicated that the Court of Appeals finally had to step in, and the court resolved this issue in Yon’s favor.

Due to the difficulties in state court prosecutions for the killing of wolves in Washington State, it may be that the Fish & Wildlife department decides to request more prosecutions in federal court.

For other blog posts about similar subjects see my earlier posts on the laws of elk hunting, cougars in Discovery park, and cougars in Magnolia.

What do you think about the Okanogan wolf killing?  Under what circumstances is it justified for a resident to shoot a wolf in defense of his or her property?  Are small-town prosecutors trying their best to curtail poaching, or are they part of the problem?

Well, tomorrow on t.v. is the Lifetime made-for-T.V. movie Amanda Knox, Murder on Trial in Italy. The movie seems like it takes a lot of artistic license as it tells the story of the arrest and trial of Amanda Knox.  I have decided that I will watch the movie even though it apparently depicts Amanda Knox brandishing a knife, a notion largely inconsistent with the evidence now on appeal. The movie seems like it tries to please both sides in the case, but both the Knox family and the family of Meredith Kercher despise the film so far. I will watch largely to see the depiction of Giuliano Mignini, the Italian “prosecutor” who is such a disgrace to the profession that it is hard to imagine how Lifetime will portray him in a “fair and balanced” way.  I would hope the movie drums up more interest in Amanda Knox’s case on the part of the American public, but who knows, maybe that is too much to hope for. I guess I am going to keep an open mind when I watch the movie. I am sure that Lifetime will at least approach the case with better intentions that the British press has.  Let me know what you think of the movie. No spoilers though because I will be watching the movie on Pacific time.

Since you have the T.V. on this week, you may also want to check out the new T.V. show The Chicago Code. I watched the pilot free on iTunes, but the show is also available to watch online free at the Fox.com site. I downloaded the show two weeks ago and gave up on it after the first 5 minutes after a corny chase scene.  I was lured back to it after Chicago blogger Mark Draughn kept talking about it.  The show stars Jason Clarke as the cop going after corrupt politicians. (In the past, he played the corrupt politician subject to a police investigation in Brotherhood.)  As a criminal defense lawyer, I usually don’t watch a lot of crime dramas on T.V.  I guess by 5 p.m., I have usually had my fill of that sort of thing. However, this show looks pretty good. Also, I think it is important for lawyers to have some familiarity with this genre because these shows really effect the way jurors look at cases.   On T.V. crime dramas the police are usually a lot rougher physically on suspects than real life, and don’t really stop interrogations just because the suspect has invoked his right to remain silent or his right to a lawyer.  The police on T.V. usually spend more time on investigations, whereas in my practice police hardly ever take the time to even try to dust for fingerprinting.

To see Mark Draughn’s opinions on the show, see here and here. Take the time to see his site. This guy has been a snarky blogger since before I even had an email address.

Americans are really starting to wonder about Italy.  This seemingly mild-mannered NATO ally is the birthplace of the renaissance, and the Roman Republic is a cultural antecedent to all Western democracies.

Italian soldiers have fought along side the U.S. in Afghanistan, and the country remains a popular tourist destination for Americans.   The U.S. public just hasn’t had any negative views toward Italy  since well, you know, that whole World War II Mussolini thing.  But now, the American public is just quietly watching with bewilderment as the Italian legal system spins out of control in this whole Amanda Knox fiasco.

I was just dumbfounded last November when Italian prosecutor Giuliano Mignini charged Amanda Knox with slander.  But today the newspapers were filled with the story that Amanda Knox’s parents have been charged with slander.  The news today was that Curt Knox and Edda Mellas have both been charged with the crime of slander in an Italian court for repeating their daughter’s complaints of police mistreatment to a British newspaper.  In November, I addressed Amanda Knox’s slander charge and wrote: “As a lawyer, and a former American prosecutor, I have seen some pretty petty moves pulled by prosecutors.  However, this “slander” charge I think would top them all.”  Little did I know as to what was to come.   The biggest problem I see with this prosecution, is how in the world can you charge someone with slander when they did not profess to have any independent knowledge of the occurrence?  All that Curt Knox and Edda Mellas did was relay complaints that their daughter made about being cuffed in the head by the Italian police during an all-night interrogation.  If the parents are being charged with slander, then why isn’t every newspaper in Europe being charged with slander for reporting the same information?  The reason is because the Italian prosecutors are completely out of control, they do whatever they want, and the Italian justice system is so dysfunctional that it doesn’t seem to have even the most elemental checks and balances that you would expect in any free country.

Now you can read the snarky opinions of a criminal defense lawyer – on the go.  Introducing the Graham Lawyer Blog phone app!  If you have a Nokia phone, you can download it here.  For those of you who use an iPhone, I am still working on that application.  We are coming up on the 2 year anniversary of Graham Lawyer Blog.  People more than ever are using the internet with their mobile devices.  Statistics show that 40% of adults in the U.S. surf the web with their mobile devices, and that statistic is only likely to increase.

Let me know if there are any bugs in the programming for the application.  It is still experimental.  It was made on Ovi.com.  I am working on edited or abbreviated versions of the blog posts that can be read online.  Some of my blogs posts have been over 2000 words.  If you have an idea for a blog post, email me.  I am always looking for new topics for consideration on the subject of local goings on and criminal law type stories.  Thanks for reading and visiting my blog.

While marijuana is not legal in British Columbia, its possession in smaller quantities is certainly more tolerated then in Washington State. And for a B.C. resident, being caught at the U.S. border with even the smallest amount of marijuana can be a harrowing experience. A marijuana possession charge in B.C. is often handled by a single police officer who conducts a search and then may or may not write a ticket. But in recent years at the U.S. border, Canadians caught with marijuana have been detained up to 8 hours while numerous federal agents search every nook and cranny of their vehicle and personal belongings, while others agents watch with one hand on their holster. I have lived and practiced law in Washington State’s border counties since about 1994, and while policies of marijuana in other law enforcement agencies have loosened, it seems that the federal agents take marijuana more seriously then ever. Since the 9/11 bombing in 2001, the number of agents at the border has tripled, but I am not sure how much safer the area has become. Marijuana at the border is such a distraction for federal agents, that one can imagine that if terrorists did want to enter the country that all they would have to do is send an advance guard of otherwise law abiding British Columbians with a gram or two of cannabis in their possession. I sometimes wonder if high-level U.S. officials resent the Canadians because a lot of the marijuana in Washington does come from British Columbia. Whatever the reason, Canadians are often shocked at the treatment at the border, and here are a few tips from a criminal defense lawyer on how to survive:

1. Be alert of the border locations. It is common to hear of a traveling Canadian stumbling upon a U.S. Border station on accident. Many of the major routes travel along or near the U.S. border. It is a common misconception to believe that you can approach the border and then ask to just loop around. However, once you approach the border station, you have already entered the territorial U.S. Occasionally, Canadians will simply drive near the border to wait for a friend arrival. Be aware of any signs that warn travelers with the following language: ‘Beyond this point all traffic must proceed directly to the border.” In other words, if you travel near enough to the border, you will find American officials waiving you in.
2. Exercise your right to remain silent. I can’t say I know a lot about Canadian constitutional law, but in the U.S. you have the right to remain silent and not incriminate yourself. And you need not wait until an agent reminds you of that right. If marijuana is found in your vehicle, do not make any statement admitting that you knew it was there. If the marijuana is in your suitcase, this might seem like a no brainer, but no one knows that your partner couldn’t have just left it there, and you just dropped him or her off 15 minutes prior.
3. You can’t talk yourself out of being charged. The agents couldn’t care less if the marijuana was a small amount or was personal use, your will always be cited and receive papers prohibiting your re-entry. I have seen marijuana cases referred for court in Okanogan, Ferry and Stevens County in the amount of .1 gram. And .1 gram is about the size of a grain of rice. The agents might imply that they will be lenient if you are cooperative, but I have never seen that to be true. Although some local law enforcement agents might let someone go without charging them, this just never happens with marijuana at the border.
4. Know what to expect. While the federal border agents might seem gung ho about finding marijuana in your vehicle, keep in mind that their federal counter parts in the U.S. Attorney’s office in Spokane won’t take the case if the amount of marijuana is relatively small. And by “small” I mean less than a hockey bag full. Let me explain this a little better. Bringing any amount of marijuana across the border is a federal offense in the United States, but in practice you will be referred for charges in State court in Ferry County, Okanogan County, or Stevens County. Once in state court, you could face up to 90 days jail for a misdemeanor marijuana charge, but will likely receive 1 day in jail or less. For possession of marijuana in an amount over forty grams, you could potentially face felony charges. For more on punishments see here and here.

In conclusion, there are many cultural difference between how the local Canadian authorities and U.S. Border agents view marijuana. Maybe in a future blog posts we can discuss how the Canadian border agents freak out when Americans show up with a car load of firecrackers, or handguns, or tazers.

What do you think of the way U.S. Border agents treat these cases? If you have a story you would like to share, please post it as a comment below.

As the rest of us readied ourselves for holiday plans and travel, newly elected officials prepared to take office in their new positions.

And with little fanfare, Deputy Prosecutor Tom Brown in Ferry County was sworn in today to replace Republic lawyer Lynda Eaton as Ferry County District Court Judge. Lynda Eaton was elected in 1994 in a contested election against then judge Norman Sauer. Norman Sauer was the first judge I practiced law in front of when I was 24-year-old Rule 9 intern in 1994. In that year, Lynda Eaton was an assistant public defender working for Rebecca Baker. In more recent years, Lynda Eaton ran a title company called Ferry County Professional Services.

Tom Brown, as the winner in this fall’s election, replaced Lynda Eaton and was sworn in also as Superior Court commissioner today. Tom Brown is a 2004 University of Oregon Law School graduate.

He also served in the Marine Corp and also attended the University of Portland. As a prosecutor he typically handled the felony caseload. In District Court, he will preside over misdemeanor offenses, name changes, small claims, and first-appearances on felony arrests. His court commissioner work could include assisting the Superior Court judges on divorces, probates, and restrain order petitions.

I read in the Spokesman-Review last week that the Washington State Department of Revenue sent notices to medical marijuana dispensaries demanding collection of retail sales tax on marijuana sold. This letter took the position that the sale of medical marijuana does not fall within the sales tax exception for prescription drugs. But is this interpretation of the law really correct? Many dispensaries have begun collecting and paying sales tax to the Department of Revenue as a way of seeking legitimacy. However, isn’t paying the tax conceding that “medical marijuana” is somehow of lesser medical value than other prescription drugs?

Medical marijuana cannot be “prescribed” under federal law, but it is important to remember that the definition of “prescription drug” for purposes of Department of Revenue (DOR) regulations is different. Let’s take a look at the DOR code on this subject. Section 1 of RCW 82.08.0281 clearly states retail sales tax “shall not apply to sales of drugs for human use dispensed or to be dispensed to patients, pursuant to a prescription.” Section 4 of RCW 82.08.0281 clearly states: “‘Prescription’ means an order, formula, or recipe issued in any form of oral, written, electronic, or other means of transmission by a duly licensed practitioner authorized by the laws of this state to prescribe.” How exactly does a doctor’s medical authorization for marijuana not fall under this definition? (See sample of authorization form.) Courts have ruled that the DOR is not to use a hyper-technical definition of “prescribed.” In the case Deaconess Medical Center v. DOR, 58 Wn. App. 783 (1990) the Washington Court of Appeals used the common dictionary definition of “prescribed” from Webster’s Third New International Dictionary 1792 (1966). The Webster’s dictionary definition of “prescribed” means “to designate or order the use of as a remedy.” Webster’s uses the term broadly, and provides the term in the following example sentence: “The doctor prescribed three months of physical therapy for my leg injury.” Simply put these dispensaries are the victim of a Department of Revenue shake down.

Let’s remember that medical marijuana dispensaries operate in a gray area of the law. The Washington voters legalized medical marijuana possession, but never provided for a clear legal mechanism for sick patients to obtain the drug. Not every sick cancer patient is able to tend to their own marijuana garden. Consequently patient cooperatives have sprung up, often acting in concert with activists. Most police agencies have held off raiding these dispensaries, but we only have to read yesterday’s Inlander article to see that the police are merely biding their time before further raids continue in Spokane. The truth is that the dispensaries are scared, and no dispensary is likely willing to refuse pay these bogus sales taxes to the Department of Revenue. The attorneys general that work with DOR can simply make a call to the criminal division of the Attorney General’s office to push for prosecution of dispensaries unwilling to pay these “taxes.” No dispensary wants to be the one to stand out and risk criminal charges. To put it another way, the uncertainty in the law makes these dispensaries susceptible to a form of blackmail. Revenue projections calculated by the The Inlander amounted to millions of dollars Olympia is getting from these patient cooperatives. This “sales tax” in turn will be passed on sick patients who can scarcely afford to pay more for their medicine.

You have to wonder also about the legality of collecting sales tax for an activity that is still in violation of federal law. Generally speaking, just because an activity is illegal does not mean that it is tax exempt. However, in the case of Marchetti v. United States (1968), the U.S. Supreme Court held that certain regulations that required the reporting and tracking of the activity for revenue purposes amounted to a violation of the right against self-incrimination.

Why is Washington trying to impose a sales tax on medical marijuana dispensaries when the State of California does not? The dispensaries in California seems to be a little more confident that they will not be raided, and enjoy more protection under their State law. They would be more willing to fight such a state action in my opinion. In Washington, Mike Gowrylow, a spokesperson for the Department of Revenue, explained “right now, every buck counts”. Quite simply the State is hungry for revenue from all sources. In my experience as an attorney who has defended clients from the Department of Revenue, the State often seems to come up with “creative” ways to apply taxes during economic downturns. One time I represented a client who received an assessment for taxes under questionable circumstances. We indicated out intention to fight it and appealed. About 6 months through the process, the Department just dropped the issue, apparently moving on to easier targets.

What do you think about this subject? Should these dispensaries have to pay sales tax? Do you think that all the dispensaries in Spokane will comply? Will these tax payments help legitimize these co-ops? Will more dispensaries be raided as the Spokane police have threatened?