Medical Marijuana — What is a "Plant"?

Medical Marijuana — What is a

The Washington State Department of Health has defined “plant” as any marijuana plant in any stage of growth. See WAC 246-75-010. Washington’s Controlled Substances Act more specifically defines marijuana as “all parts of the plant Cannabis, whether growing or not,” but specifically excludes certain parts produced by the plant, such as mature stalks of the plants, fiber produced from the stalks, and preparation of the mature stalks or fiber. See RCW 69.50.101(q).

The Ninth Circuit has long held that “marijuana cuttings must have root formations to be considered plants for sentencing purposes.”  United States v. Robinson, 35 F.3d 442 (9th Cir. 1994).  The Court held in Robinson that “[u]ntil a cutting develops roots of its own, it is not a plant itself but a mere piece of some other plant,” and adopted the rule that cuttings are not "plants" unless there is readily observable evidence of root formation.  Such readily observable evidence of root formation requires “observable roots or root hairs,” and not merely a structure or swelling from which roots will emerge.

More recently, the 2004 United States Sentencing Guidelines have defined “plant” as “an organism, having leaves and a readily observable root formation,” such as a marijuana cutting having roots, a rootball, or root hairs. U.S.S.G. § 2D1.1, comment (n.17).  In short, the various definitions provided by statute and case law indicate that a marijuana stalk clipping is not a marijuana plant until it has developed a “readily observable root formation.”

Although jurisdictions outside Washington have considered this issue, Washington courts have not explicitly determined what constitutes a “plant.”  This is a gray area in Washington law, and the question of whether an immature clone will be treated as a “plant” for purposes of calculating the presumed 60-day supply amount may be answered differently by different jurisdictions in Washington.

Contact Walla Walla attorney Andrea Burkhart for assistance with medical marijuana in Washington.

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