Most of the readers here know that Arizona’s Medical Marijuana Act continues to generate controversy to this day, seven years after it was enacted. Many state and local officials continue to vehemently oppose the law and seemingly delight at attacking patients and caregivers at every turn. Just when you might think that things are settled, […]
Most of the readers here know that Arizona’s Medical Marijuana Act continues to generate controversy to this day, seven years after it was enacted. Many state and local officials continue to vehemently oppose the law and seemingly delight at attacking patients and caregivers at every turn. Just when you might think that things are settled, another case or piece of legislation pops up that throws a big part of the law back into question. The good news is that, despite the government’s best efforts, our courts have upheld the law as a whole and the AMMA is here to stay. The bad news is that the anti-marijuana zealots have not given up and now focus their efforts on attempting to dismantle the Act piece by piece. At the same time, there remains a great deal of misinformation about the law circulating within the medical marijuana community and law enforcement is ever eager to capitalize on the confusion that it generates.
By way of introduction, my practice is devoted entirely to marijuana related matters. Although my primary focus in in the areas of criminal defense and business, I have also handled cases in many other areas of law when marijuana use is at issue, including for example parental, employee and landlord-tenant rights. I have been given great latitude in deciding what to write about here and in future articles, I hope focus on broader topics and overviews pertaining to patient rights. Today, however, I have decided to write in more detail about a specific legal development that could have very serious consequences for patients in the immediate future.
Patients have become accustom to possessing and using hash oil products that are extracted from flower and trim in a concentrated form. Sometimes hash oil is combined with other ingredients in edible products, but they are also consumed unadulterated in the form of products such as oil, wax and shatter. In fact, vape pens have become one of the most popular method of medication. These products allow a patient to obtain the benefit of a more concentrated dose of medical marijuana without having to smoke it.
Early on, the Maricopa County Attorney’s Office asserted that these products were not covered under the AMMA patients found to be in possession of a medical marijuana candy or a vape pen were arrested and prosecuted with felony possession of a narcotic drug. Why a “narcotic” drug? Under Arizona’s criminal code, resin and extracts are listed as narcotic drugs and referred to as “cannabis” and treated more harshly than marijuana offenses. Two Maricopa County Superior Court cases appeared to put this issue to rest in 2014. The first was a criminal case that the author was involved in, State v. Watts and the second was Welton v. The Arizona Department of Health Services, a civil declaratory judgment action filed by the ACLU.
Both cases held that concentrates were covered under the AMMA’s definition of usable marijuana which is defined as “the dried flower and any mixture or preparation thereof.” These decisions made perfect sense because hash oil is clearly a “preparation” of marijuana, just like novocain is a preparation of the coca plant or aspirin is a preparation of willow bark.
In modern medicine, plant derived medicines are prepared and delivered in a concentrated form because it requires a smaller dose and is easier to measure and control. Although once an acceptable method of medication, it has been many years since persons admitted to the hospital for the treatment of a serious condition such as a broken back or a kidney stone was offered an opium pipe to treat their pain. Instead, a constituent of the poppy plant called morphine, is delivered intravenously in a concentrated dose.
In any event, shortly after the Watts and Welton cases were decided, dispensaries began to carry concentrated hash oil products on their shelves, the AZDHS started issuing what are commonly referred to as kitchen licenses to those dispensaries that wished to produce them, and patients who were found to be in possession of hash oil products were left unmolested by law enforcement and prosecutorial agencies. That is, until recently.
Earlier this month, a Navajo County Superior Court judge issued a contrary opinion in State v. Ruether, sending what was thought to be a settled issue into controversy yet again. In the Reuther decision, the Court wrote “The Court reads the AMMA language of “any mixture or preparation thereof” as making reference to the dried flowers of the plant and as such, without further definition, or information that cannabis [concentrates] can be extracted from the ‘dried flower’, the Court cannot find that this would include cannabis [concentrates]… The Court went on to hold that “the AMMA is not a defense to the charge of possessing for sale the narcotic drug of cannabis [concentrates].” In other words, the Court’s ruling is that concentrates are not permitted under the AMMA and any patient found to be in possession of vape pens, wax, shatter or infused edible products is subject to arrest and felony prosecution for possession of a narcotic drug. Moreover, anyone attempting to sell such products is, in the opinion of the Court, committing the offense of Sale of a Narcotic Drug, including dispensary owners and employees.
These offenses can carry serious consequences, sometimes including mandatory imprisonment for several years. For example, if the amount of concentrates discovered by police exceeds $1,000 in street value, possession with intent to sell carries a mandatory prison sentence of 4-10 years. With my assistance, Mr. Reuther’s attorney, Jon Saline, is going to appeal the Court’s decision to the Arizona Court of Appeals and to the Arizona Supreme Court if necessary, where the issue will be settled, but this can take in excess of a year.
In the meantime, Reuther is certainly cause for concern to patients, caregivers, and dispensaries alike throughout Arizona, and especially to those in Navajo County. Unless and until the appellate court reverses the decision, cardholders must be mindful of their potential exposure to arrest, prosecution and penalty should they choose to possess concentrates and edibles and exercise appropriate precautions. For example, cardholders should be familiar with their constitutional rights in case they are stopped by the police. A good start would be to download the Glove Box Lawyer which is available on the internet (e.g., https://saferarizona.com/pulled-print-glove-box-lawyer-today/). I originally drafted this concise statement while Legal Director at NORML back in the 90s. This updated version is what you need to effectively assert your rights in the event of contact with the police.
Stay safe out there!
Tom Dean has been fighting for the rights of cannabis consumers since 1993. Although his interest in marijuana reform began in college, he cut his teeth in marijuana law as an attorney while working for well-known criminal defense attorney Lee Phillips in Flagstaff. After cultivating his knowledge in this area of law and deepening his experience in the courtroom for several years, he moved to Washington, D.C. to become the National Legal Director for the National Organization for the Reform of Marijuana Laws (NORML). As NORML’s Legal Director, Tom initiated and managed many matters of national importance to marijuana policy reform and also coordinated the efforts of the NORML Legal Committee and NORML Amicus Committee in key cases throughout the U.S. Since returning to Arizona, Tom has devoted his practice entirely to cannabis related matters. He continues to serve as a lifetime member of the NORML Legal Committee, Chairs the NORML Amicus Committee, is Legal Director of NORML’s Arizona state chapter, and was inducted into the NORML Distinguished Counsel’s Circle. He is also a founding member of the National Cannabis Bar Association (NCBA) and the Arizona Cannabis Bar Association (ACBA). Since its enactment, Tom continues to litigate and win more than a few significant cases pertaining to the rights of cardholders under the Arizona Medical Marijuana Act (AMMA). In recognition of his work in marijuana law in Arizona, in 2016 Tom received the AACJ’s President’s Commendation award. Outside of the courtroom, Tom enjoys presenting at seminars and conferences both in Arizona and elsewhere and working on a book he hopes to publish about marijuana law in Arizona. He remains a steadfast activist for marijuana policy reform.