Risk of Jail for Medical Marijuana Users Even if you Have Your Card!

In a recent decision, the Arizona Court of Appeals held that AMMA (Arizona Medical Marijuana Act) does not immunize a person from prosecution for use/possession of cannabis (specifically hashish) “under the circumstances presented” in the case. Note that it is likely that the decision will be appealed to the Arizona Supreme Court – however, that could take several months to resolve.

The defendant was found with a small amount of hashish, and at the time, had a valid medical marijuana (MMJ) card. He moved to dismiss the charges of possession of narcotic drugs (note that possession of cannabis is a class 4 felony, not a class 6 felony as is possession of marijuana) and possession of paraphernalia. That motion was denied, and he was convicted following a bench trial. He was sentenced to the presumptive term of 2.5 years (presumably he was not Prop 200 eligible, meaning he had at least two drug-related prior convictions, or he would have received mandatory probation).

The issue in the case involved an interpretation of the definition of “marijuana” in AMMA. AMMA defines usable marijuana as “the dried flowers of the marijuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks and roots of the plant.” The question thus becomes whether hashish, and other substances such as wax, oil, etc., that have heretofore been presumed by most people to be covered by AMMA, constitute a “mixture or preparation” of the plant. AMMA also includes within the definition of marijuana “all parts of any plant of the genus cannabis, whether growing or not.” Oddly, this latter aspect of the definition was not really addressed by the Jones decision.

Hashish is a resin extracted from the marijuana plant, and Arizona courts have previously permitted differential treatment of hashish compared to marijuana due to the higher potency of the former.

Notwithstanding the above, the reasoning of the Court of Appeals in attempting to exclude hashish (and potentially other products such as wax and oil, though the decision does not specifically address these) seems unsound. The court concluded that hashish is processed from separated or extracted resin, and therefore is not a mixture or preparation because it does not include non-marijuana elements. The logic that to qualify under AMMA, the final product must include a non-marijuana element would seem to read a requirement into the statutes that simply is not in the plain language. This cuts against the rules of statutory interpretation, which require a liberal interpretation of voter initiatives. It likely also contradicts the purposes of AMMA, and the common understanding of the general public, especially considering that these various extracts (especially waxes and oils) are commonly sold at dispensaries.

Going forward, the decision poses a serious issue for medical users. While it is unclear whether the decision is limited to the facts of the case and/or limited to hashish, a person possessing wax, oil, or some other extract or cannabis related substance now runs a serious risk of facing arrest and prosecution.

There are several possible ways to address this issue, and we can help a person litigate this without first having to face the risk of criminal prosecution. We can help in this regard, most notably by seeking a temporary restraining order in court to prevent an arrest until the courts can address the issues more fully (especially the Arizona Supreme Court).

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