I’m sure many of you remember, maybe even celebrated, the legalization of medical marijuana back in 2010. Arizona voters approved Proposition 203 and the subsequent Arizona Medical Marijuana Act (“AMMA”) which allows people with qualifying medical conditions to obtain a medical marijuana card, legalizing possession and use of marijuana within the limits of the law. But, if that was where you stopped paying attention, you’ve missed quite a bit. So, sit back and let me update you.
To provide some context for those unfamiliar with the wonderful world of medical marijuana; this is not your grandmother’s pot (slang for marijuana). The marijuana sold in medical dispensaries has evolved far beyond the traditional flower (another term for marijuana) you may have smoked in college. Of course, the dispensaries still sell the plant itself, but now dispensaries sell marijuana in all kinds of different forms. Many of the products sold in dispensaries are made from extracted resin concentrates, no flower to be seen, just concentrated cannabis. In fact, more than half of the products sold in dispensaries are made with extracted resin. These days, medical marijuana patients have access to oil/wax filled vaporizing pens (concentrated oils in variable amounts of THC, the psychoactive component of marijuana), practically any conceivable marijuana infused edible from the traditional brownies to THC infused sodas, CBD oil (non-psychoactive oil that can help with pain, inflammation, and anxiety), shatter (glass-like cannabis extract), and much more.
It makes sense then, given the diversity and strangeness of these different medical marijuana products, that our conservative state would test the limits and scope of the AMMA. One of the big issues that has been challenged under the AMMA is the use of the extracted resin products discussed above. Back in March 2014, Maricopa County Superior Court Judge, Katherine Cooper, found that the AMMA allows medical marijuana patients to possess and use extracts of the marijuana plant, including extracted resin. This was great news for proponents of the AMMA, but unfortunately it only established precedent for Maricopa County, leaving the extracted resin issue to be decided on a county by county basis.
Fast forward to last month, October 2017, Navajo County Superior Court Judge, Dale Nielson, when faced with a similar question, ruled that the AMMA does not cover “cannabis” (extracted resin). This ruling created a direct conflict in law between Navajo County and Maricopa County, which made this issue ripe for review by the Arizona Court of Appeals. There is no appeal pending at this time, but the conflicting rulings made me sit up and take notice.
So, how does something like this happen? The confusion and resulting dispute arises from the conflict between Arizona’s criminal code and the AMMA. The AMMA defines Marijuana as “all parts of any plant of the genus cannabis whether growing or not, and the seeds of such plant.” A.R.S. § 36-2801. Arizona’s criminal code however, specifically differentiates between marijuana and cannabis, despite the fact that cannabis is essentially the scientific term for marijuana. The criminal code of the Arizona Revised Statutes, Chapter 34 deals entirely with drug offenses. Chapter 34 defines marijuana as “all parts of any plant of the genus cannabis, from which the resin has not been extracted, whether growing or not, and the seeds of such plant.” A.R.S. § 13-3401(19). This clearly does not include extracted resin. The same chapter defines cannabis as “(a) the resin extracted from any part of a plant of the genus cannabis, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or its resin… (b) every compound, manufacture, salt, derivative, mixture or preparation of such resin or tetrahydrocannabinol.” A.R.S. § 13-3401(4). Not only are marijuana and cannabis defined differently, but they are also penalized differently under Arizona’s criminal code. Possession of marijuana, so long as the amount is less than two pounds, is considered a Class 6 felony, whereas possession of cannabis, in any amount, is a Class 4 felony. A.R.S. §§ 13-3405, 3408. That means, if you are caught with just under two pounds of marijuana, you would receive a significantly lighter sentence than someone who is caught with a .500mg vape pen or any other extracted resin based product. In fact, extracted resin based marijuana products are technically considered narcotic drugs under Chapter 34.
Now obviously the AMMA allows medical marijuana card holders to avoid criminal penalties for possession, so card holders can carry around their medicinal marijuana without worry. The relevancy of the criminal code to this discussion comes into play because the AMMA does not define cannabis or provide any guidance specifically on extracts. You may be thinking, “a normal citizen would look at the AMMA’s definition of Marijuana and assume that based on the language ‘ALL parts of ANY plant of the genus cannabis’ the statute is intended to cover all forms of the genus cannabis, including extracts.” But that is where you, normal citizen, would be disappointed. If there is anything you can say about the law, it’s that it is unnecessarily complicated and lacking in common sense. To be fair, that unnecessary complication and lack of common sense is the reason I have a job, but I digress. However, since Arizona as a State has historically differentiated between marijuana and cannabis, at least from a criminal perspective, we have county prosecutors who are trying to pursue possession or narcotic drug charges against a man who has a medical marijuana card, and a judge who has allowed them to do so, because under his interpretation of the AMMA, it does not cover extracted resin.
You may be asking yourselves, what does all of this mean? Am I attempting to warn you so you can run out and stock up on enough vape pens and dabs (highly concentrated doses of cannabis that are smoked using a special rig) to last you till your next Colorado trip? No! I repeat, no I am not advising you to stock up on extracted resin products. But I am telling interested parties to pay attention! As of now, medical marijuana card holders can legally possess extracted resin products within Maricopa County, but as soon as they enter Navajo County, they could be arrested and charged for possessing the same products which are legal in Maricopa County. If that sounds strange to you, you’re not alone. This is the exact kind of issue that the appeals process is designed for, and this conflict is yet to be resolved. So, if/when the Arizona Court of Appeals hears a case about the legality of extracted resin under the AMMA, there is the possibility that the AMMA’s protections could be seriously undercut and that extracted marijuana resin products could return to being classified as narcotic drugs. But there is also the possibility that the Court of Appeals confirms that extracted resin products are indeed covered by the AMMA. Either way, this signals that State 48 is on the precipice of a big medical marijuana decision that could have far reaching effects.
So, stay tuned my stoned (a euphemism for someone experiencing the psychoactive effects of THC) friends! I will keep you updated!