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Ely
Ely, Counselor at Law
Category: Criminal Law
Satisfied Customers: 100049
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Customer Question

i got an infraction for medical marijuana-in open view violation.I was not smoking,but just had my pipe in my hand. The officer (not in uniform)said he smelled marijuana,but he never saw me smoking.I informed the officer I was a medical marijuana card holder but he took my pipe and my medicine and wrote me a ticket. I was at Swift reservoir which is owned by PacificCorps and i was fishing as for away from people as I could get,down a cliff in a cove.Totally out of view from anybody, the only way to see me would be if you were standing right above me.If the officer said he saw me smoking he would be impurgerating him self. I am contesting the hearing and asking for my medicine and pipe back.Can I sue for harassment ?
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Ely replied 4 years ago.
Hello and thank you for the opportunity to assist you. There might be a slight delay between your follow ups and my replies as I am typing out my answer, or taking a quick break. Please remember that this is general information only, not legal advice, and no attorney-client relationship has formed.

I am sorry for your situation. If you get the ticket dismissed in Court, then you may sue the officer for malicious prosecution.

A malicious prosecution claim arising from a criminal action requires the plaintiff to prove the following elements: (1) that the prosecution claimed to have been malicious was instituted or continued by the defendant; (2) that there was want of probable cause for the institution or continuation of the prosecution; (3) that the proceedings were instituted or continued through malice; (4) that the proceedings terminated on the merits in favor of the plaintiff, or were abandoned; and (5) that the plaintiff suffered injury or damage as a result of the prosecution. Clark v. Baines, 84 P. 3d 245 - Wash: Supreme Court 2004.

If you can show all these elements, then this would be the proper cause of action - somewhat like harassment - but more specific to your situation.

I hope this finds you well. If you still need information, hit reply so we can chat more until you are satisfied. You may always come back to it to ask follow ups on this topic for free. Please remember that I do not get credit for my time with you unless the answer is concluded by you. You can always link to my profile for another question at a later time: www.justanswer.com/law/expert-elyJD/
Customer: replied 4 years ago.
can you tell me where medical marijuana can be smoked. For instance if I am in the middle of the forest am I aloud to smoke?Also how can I get an infraction when I wasn't even smoking,officer said he smelled it.He also told me he just wrote a ticket to somebody else for smoking marijuana,could it be maybe someone else was smoking?
Expert:  Ely replied 4 years ago.
Hello,

Nothing under RCW 69.51A says that you cannot smoke outside if you have a medical card:

http://apps.leg.wa.gov/rcw/default.aspx?cite=69.51a

It is likely that upon explaining that happened to the DA (via an attorney), the matter will be dismissed. Police officers can get overzealous. Then, you can discuss with counsel if filing for malicious prosecution is an option.

Since marijuana is still technically illegal under federal law, it is advisable to refrain from smoking marijuana in public places. I am surprised that you got a ticket in the middle out of nowhere, but this really is an unlikely occurrence and should be dismissed because technically, you may do so.

I hope this finds you well. If you still need information, hit reply so we can chat more until you are satisfied. You may always come back to it to ask follow ups on this topic for free. Please remember that I do not get credit for my time with you unless the answer is concluded by you – I work very hard to formulate an informative answer for you – please reciprocate my good faith in helping you. You can always link to my profile for another question at a later time: www.justanswer.com/law/expert-elyJD/

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