As is often the case in our respective lives, there is good news, and there is bad news.  Such is the current state of affairs in the Arizona appellate courts with a couple of their most recent interpretations of the Arizona Medical Marijuana Act (“the AMMA”) and how it applies in the DUI context, and in determining what is, and what is not “marijuana” (as opposed to “cannabis.”)

The Good News – State v. Kemmish

First, let’s start off with the good news.  In late 2015, I had a jury Trial in largely rural Mohave County, Arizona, where my client was accused of misdemeanor DUI, and the State’s allegation was that my client had been driving while under the influence of marijuana.  My client had, in his possession, a physician’s recommendation letter obtained pursuant to California’s medical marijuana statute, at the time he was contacted by the law enforcement officer during the traffic stop.

On the eve of the jury Trial (literally, the afternoon before), the State filed a Motion in Limine, requesting that the court preclude me from introducing evidence of the California physician’s recommendation letter at Trial.  Despite my best efforts to convince the court that the California physician’s recommendation letter was clearly the “equivalent” of a California medical marijuana card (and thus, to be treated the same as an Arizona medical marijuana card would) pursuant to A.R.S. § 36-2804(C), the court granted the State’s Motion.

At Trial, the jury acquitted my client of driving under the influence to the slightest degree, BUT convicted him of driving while there was a drug (marijuana) or its metabolite in his system, pursuant to A.R.S. § 28-1381(A)(3).

After Trial, I convinced my client to appeal the conviction, and the matter was subsequently appealed to the next highest court, the Mohave County Superior Court, and was handled by the Mohave County Public Defenders Office.  I wound up meeting the Deputy Public Defender who handled my (now former) client’s appeal at a CLE class on, not coincidentally, AMMA and criminal law issues, and knew that my former client was in great hands.

A couple of months later, the Arizona Court of Appeals in State v. Kemmish, faced a case with almost the exact same legal issue as mine (the only real differnece being that the Defendant in Kemmish was found in possession of a small amount of marijuana and marijuana wax following a traffic stop), namely, whether a California physician’s recommendation letter is the equivalent of a California medical marijuana card, and thus possessed the same force and effect as an Arizona issued medical marijuana card would, pursuant to A.R.S. § 36-2804(C).

The Kemmish Court found that the California physician’s recommendation letter was the equivalent of a California medical marijuana card, and thus possessed the same force and effect as an Arizona issued medical marijuana card.  The Arizona Court of Appeals ultimately upheld the lower, Superior Court’s dismissal of the State’s indictment, and dismissed the State’s appeal, stating that the AMMA’s language was “clear and unambiguous,” when it came to determining what “or its equivalent” meant in A.R.S. § 36-2804(C).

Shortly after the Kemmish decision was published in mid-March 2018, the State in my old case essentially threw in the towel, and moved to dismiss the A.R.S. § 28-1381(A)(3) (the driving with a drug or its metabolite in the system) charge.  The lower court granted the State’s Motion to Dismiss, and the case ended in May of this year.

The Bad News – State v. Jones

Now on to the BAD news.  Two out of three judges on a 3-judge panel of Division One of the Arizona Court of Appeals, on June 26, 2018, issued in State v. Joneswhat could be a potentially devastating opinion to medical marijuana patients and dispensaries, on what immunizes someone from criminal prosecution under the AMMA, and what does not.

The Defendant, Mr. Rodney Jones, was found by law enforcement officers in Yavapai County, Arizona to be in possession of a small amount of hashish, back in 2013.  At that time, Mr. Jones was a qualifying patient under the AMMA, and had a valid, Arizona issued medical marijuana card.  Prior to Trial, Mr. Jones moved to dismiss the State’s indictment, arguing that his possession of an AMMA card provided an absolute defense to the charge, but the Trial court denied his motion.  Following Trial, Mr. Jones was convicted of Possession of a Narcotic Drug, pursuant to A.R.S. § 13-3408(A)(1), and NOT Possession of Marijuana (don’t worry, we’ll get to that issue in a second), and was subsequently sentenced to 2.5 years in prison.  His appeal followed.

According to the Jones Court, the State and Mr. Jones both agreed that hashish was a form of cannabis distinguishable from the green leafy substance commonly referred to as marijuana (this was probably the FIRST mistake…)  “Hashish” had been defined in an earlier, 1975 Arizona Supreme Court case, State v. Bollander, as “the resin extracted from the marijuana plant.”  The Arizona Criminal Code, specifically, A.R.S. §13-3401(20), defines “cannabis” as “[t]he resin extracted from any part of a plant of the genus cannabis, and every compound, manufacture, salt, derivative, mixture of preparation of such plant, its seeds or its resin.”  Cannabis is classified, under the Arizona Criminal Code, as a “Narcotic Drug,” a Class 4 felony, and its possession is treated more harshly than Possession of Marijuana, which is a Class 6 felony (the lowest level felony in Arizona – AND which has an option, in certain instances, to be reduced to a misdemeanor – an option completely unavailable for Possession of a Narcotic Drug).

The majority of the judges in Jones essentially distinguished the AMMA’s definition of “marijuana” (namely, “all parts of any plant of the genus cannabis, whether growing or not, and the seeds of such plant,” pursuant to A.R.S. § 36-2801(8)) from “hashish,” criminalized as “cannabis,” and held that the AMMA afforded Mr. Jones NO protection from criminal prosecution for the small amount of hashish found in his possession in Yavapai County.

Presiding Court of Appeals Judge Kenton Jones (no relation to the Defendant Rodney Jones) wrote a well-reasoned dissent to his 2 Court of Appeals colleagues, and argued that the AMMA’s meaning was clear and unambiguous – that marijuana, which includes “all parts of any plant of the genus cannabis,” necessarily includes the resin extracted from the plant, that the majority in Jones minced words, and also went against the voters’ wishes in approving legal medical marijuana in the first place.

Judge Jones also discussed Arizona Department of Health Services (the Arizona agency tasked with regulating application of the AMMA) regulations regarding marijuana dispensaries, and how these regulations, specific to marijuana edibles, discuss “concentrates . . . that contain marijuana,” which are the same thing as resins, to support his argument that the language of the AMMA’s marijuana definition is unambiguous.

Where this gets dicey for AMMA patients, dispensaries, and suppliers is the fact that most, if not all, marijuana edibles are made with marijuana resin (or “hashish,” according to the Jones case) and are thus, now, illegal under Arizona law.  Sheila Polk, the current Yavapai County Attorney is an outspoken critic of medical marijuana, with an anti-marijuana zeal not seen since Reefer MadnessThe danger here, especially for AMMA patients and dispensaries located in Yavapai County, is that law enforcement officials now have the authority, pursuant to the Jones decision, to raid dispensaries selling marijuana products made with cannabis resin (or “hashish”), seize these products, and potentially prosecute dispensary owners for Possession of Narcotic Drugs for Sale, as a Class 2 felony, pursuant to A.R.S. § 13-3408(A)(2) (a statute that carries a mandatory prison sentence, should the owner be convicted).  Any AMMA patient in Yavapai County, found by law enforcement officials with an edible created with resin could find themselves like Rodney Jones, facing a Class 4 felony for Possession of Narcotic Drugs in the Yavapai County Superior Court.

As bleak as all of this sounds, there MIGHT be a way out – the Arizona Court of Appeals ruling in Jones CAN be appealed to the Arizona Supreme Court.  I’m almost positive that Mr. Jones’ attorneys have already filed a Notice of Appeal to that Court.  The thing is, the Arizona Supreme Court’s review is discretionary, meaning, they can decide to allow the Arizona Court of Appeals’ ruling to stand with no comment, or they can take the case up to decide it themselves (and either affirm the Court of Appeals’ decision, or reverse it).  In a worse case scenario, after an Arizona Supreme Court decision affirming the Arizona Court of Appeals’ decision, Mr. Jones and his attorneys could file a habeas corpus petition in the U.S. District Court of Arizona, to attempt to find relief there (or in an appeal from there to the U.S. Court of Appeals for the 9th Circuit, located in San Francisco, and from there, potentially, the U.S. Supreme Court).

Stay tuned!

Cary L. Lackey, Esq. is an attorney licensed to practice in Arizona, with offices in Phoenix and in Tucson.  His practice is heavily devoted to DUI defense, with a particular emphasis on marijuana related DUI offenses.  He can be reached at 602-288-2303 in Phoenix, 520-790-5433 in Tucson, and at www.CaryLackeyLaw.com.