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Medical Marijuana Is Not a Crime–but Could It Be?

While still contemplating the advent of a marijuana breathalyzer and the complex nature of THC and impairment, attorneys in Arizona, one of the 33 states that have legalized marijuana for medical use only, now have to brush up on their botany.  Or is it chemistry?  You know we went to law school because of math and science.

The days of rolling doobies Dazed and Confused style seem to be coming to an end, and the dawn of a new era is upon us.  Now, those who have visited their neighborhood “weed doctor” (yes, that seems to be an actual thing) and have received a qualifying patient card to treat a medical condition with cannabis have multiple options regarding their preferred form of marijuana.  Flowers?  Edibles?  Energizing strain?  Sleepy strain?  But hold on—just how many—and what kind—of these green products can a patient legally purchase and have at home?

This conundrum is at the heart of one of the Arizona Supreme Court’s most recent decisions in which—wait for it—the court actually vacated and reversed the conviction and sentence of Rodney Christopher Jones, a registered qualifying medical marijuana patient, who was found to be in possession of a jar containing 1.43 grams, or 0.050 ounces, of hashish.  Jones was charged with possession of narcotic drugs for the hashish and possession of drug paraphernalia for the jar.  But wait?  How could this happen?  Surely Jones was immune from prosecution because he was a qualifying patient under the Arizona Medical Marijuana Act (AMMA)?  After all, AMMA defines marijuana as including “all parts of any plant of the genus of cannabis whether growing or not.”  Hashish is extracted from the marijuana plant, so it should be considered marijuana, right?  The State argued just the opposite—that AMMA does not displace the criminal code, which has long distinguished between marijuana (the part “of any plant of the genus cannabis, from which the resin has not been extracted”) and cannabis (“the resin extracted from any part of a plant of the genus cannabis, and every compound, manufacture, [etc.] . . . of the mature stalks of such plant”).  Because the criminal code defines marijuana as the unextracted plant and classifies cannabis, the extract, as a “narcotic drug,” the State argued that AMMA only provides a defense for the use and possession of marijuana, the unextracted plant.

So which one takes precedence: AMMA or Arizona’s criminal statutes?  Because AMMA became an Arizona law through voter initiative, the court tasked itself with determining what the public actually intended to accomplish by passing the law.  While the lower courts decided that voters must only have intended to legalize marijuana and not cannabis, the first covered by AMMA and the latter not, the Arizona Supreme Court disagreed.  Instead, it took a common sense approach, finding that when AMMA permitted the use of “all parts of any plant of the genus cannabis,” it meant, duh, all parts, including what can be extracted from the plant.

While the Arizona Supreme Court’s ruling officially gives qualifying patients permission to indulge in gummies, cookies, oils, or hashish without fear of felony prosecution, there was one catch.  The court ruled that despite what format a qualifying patient chooses to possess and consume, the amount a patient may legally possess is still regulated by AMMA.  The court added in a footnote that as it pertains to extracts, a patient may not possess more than the statutory maximum “two-and-one-half ounces of dried flowers, or mixtures or preparations made from two-and-one-half ounces of dried flowers,” but the court was not going to guess how much extract that would be.  In other words, the court appears to order that a patient may not legally possess more extract or resin than what was derived from 2.5oz of dried flowers.  More than that can land you back in criminal court facing felony charges for marijuana or narcotic drugs.  Of course, that two and a half ounces does not include additives, meaning gelatin, flour, or any other substance used to create the edibles or other products.  So it is up to the dispensaries to know the weight of the marijuana flowers used in the product, and that amount must not exceed the statutory maximum.

For the defense attorneys out there, this means we’ve got to get our science on.  One is also left to wonder: how can a patient be certain that what he or she possess is legal, now, considering this update?  It also seems to make dispensaries responsible for ensuring that they are selling—and labeling—products with legal amounts under AMMA.  Certainly, it will become a lot more difficult to tell what meets the statutory threshold amount for card holders when an officer pulls someone over and finds a cannabis-filled vape pen.  In the meantime, make sure you know your rights and know a good defense attorney!

https://www.acluaz.org/sites/default/files/state_v._jones_opinion.final_.pdf

https://azdhs.gov/licensing/medical-marijuana/index.php#rules-statutes