(concurring) — There is no dispute that, under the Washington State Medical Use of Marijuana Act (the Act), Mr. Shepherd was a “primary caregiver” who provided marijuana to a “qualifying patient.” He was nonetheless convicted of felony possession of marijuana. The majority affirms his conviction because Mr. Shepherd neither (1) satisfied the Act’s “valid documentation” requirement for establishing an affirmative defense to criminal prosecution nor (2) produced sufficient evidence that he possessed no more than a 60-day supply of marijuana necessary for the qualifying patient’s personal, medical use.
I respectfully disagree with the majority’s determination that Mr. Shepherd failed to provide “valid documentation.” In my view, the Act is ambiguous in articulating two different standards (one for a “qualifying patient” and another for “valid documentation”), when their literal application here would result in a strained and unrealistic result. State v. Walls, 106 Wn. App. 792, 795, 25 P.3d 1052 (2001). Under the rule of lenity, the term “valid documentation” must therefore be interpreted to include not only a physician’s statement that the potential benefits of the medical use of marijuana would likely outweigh the health risks to the qualifying patient (RCW 69.51A.010(5)(a)), but also a physician’s statement that the patient may benefit from the medical use of marijuana (RCW 69.51A.010(3)(e)). *554See State v. Bourne, 90 Wn. App. 963, 954 P.2d 366 (1998). Indeed, a physician is excepted from the state’s criminal laws if he or she either advises a patient using the “may benefit” standard or provides a statement using the “would likely outweigh” standard. RCW 69.51A.030. A designated primary caregiver should be afforded the same protection. To do otherwise would be contrary to the purpose and intent of the Act. RCW 69.51A.005.
But I concur in the result solely on the basis that Mr. Shepherd failed to make a sufficient showing that he had no more than a 60-day supply of marijuana for Mr. Wilson’s personal, medical use.
Review denied at 147 Wn.2d 1017 (2002).