Tag Archives: Arizona Medical Marijuana Act

Arizona Allows Medical Marijuana to be Consumed in Extract Form

There is a new wrinkle to the medical marijuana discussion.  An Arizona state court judge made a declaratory ruling last week that medical marijuana can be consumed in extract form. Welton v. Arizona, CV 2013-014852 (Ariz. Sup. Ct., March 21, 2014) To get a context on what this means let’s look at what led up to this judgment.

Zander Welton is a five year-old boy who suffers from severe epilepsy and has suffered through severe seizures for most of his life.  After two brain surgeries did not help Zander’s condition, his parents turned to medical marijuana.  Maricopa County Attorney Bill Montgomery, took a stance against marijuana extracts for medicinal use because it will impact his ability to prosecute people for using other types of extracts.  Bill Montgomery said that using marijuana extracts may be a criminal felony offense.  With the help of the ACLU of Arizona the Welton’s sued the state for clarification on the law.

The court ultimately found it is within the scope of the law to permit qualified patients to consume marijuana extracts.

Arizona Medical Marijuana Act

The first step in the court’s analysis is to look at the statute itself.  The AMMA governs medical marijuana for the state, so this is a logical starting place.

The statute defines “marijuana” very broadly as the entire plant.  There is also a definition for “usable marijuana,” which is also very broad.  Ariz. Rev. Stat. § 36-2801. The decision to include what is usable marijuana was a very smart decision.  Without a definition for what is and is not usuable marijuana, it would definitely make it much more difficult to argue that uses like extractions are permissible under the law.

Because the statutory definitions are drafted broadly, the judge could not find any limitations on the uses of medicinal marijuana.  The judge even broke down the meanings of individual works such as “usable” to find any sort of way the statute could be interpreted differently.  Armed with a Merriam Webster dictionary the judge cited the common definitions of: usable, any, mixture, preparation, and prepared.

The effect of these words is to allow patients to employ certain processes to adapt marijuana for a particular purpose and a convienent practical use.

Welton v. Arizona, CV 2013-014852 (Ariz. Sup. Ct., March 21, 2014)(internal quotation marks ommitted).

Intentions of the Statute

The judge analyzed the statute to take every possible intent into consideration, in an effort to further “extract” a meaning from the statute (sorry that was a bad joke).

From a logical standpoint: the judge says it doesn’t make much sense to limit how marijuana is used.  Arizona voters made a determination marijuana has medicinal value for qualifying patients and to deprive those patients of all the uses of marijuana seems contrary to reason behind the passage of the bill in the first place.

The judge also looked at how the bill was presented to the voters at the ballot box.  Nothing in the language in the bill indicated that there would be any limitations on how marijuana would be used, only those who could use it.

This Declaratory Judgement means [qualifying patients] with medical marijuana in extract form are entitled to the same protections under the AMMA that other medical marijuana patients enjoy.

Welton v. Arizona, CV 2013-014852 (Ariz. Sup. Ct., March 21, 2014).




The Status of Medical Marijuana in Arizona

There are some new studies out challenging the traditional (federal) notion that medical marijuana does not have any medicinal value.  Of note to Arizonans, a researcher out of the University of Arizona is being granted permission by the federal government permission to test if there is any medicinal value to treating veterans suffering from PTSD with medical marijuana.

In the past PTSD has been discussed as a potential candidate for inclusion among the list of “debilitating medical conditions” currently permitted by the state of Arizona for treatment by medical marijuana.

Arizona is facing growing pains while trying to embrace the voter passed law.  This conflict in federal and state laws can at times create ambiguity of what is permissible regulation.

This post will take an in-depth look at some of the points of contention and the underpinning legal arguments.

At the heart of the discussion is the direct conflict between the federal Controlled Substances Act Title 21 U.S.C. § 801 et. seq. and the Arizona Medical Marijuana Act § 36-2801 et. seq. (et. seq. means there are multiple pieces in this legislation, so keep reading the next law).

Controlled Substances Act

The Controlled Substances Act (CSA) Title 21 U.S.C. § 801 establishes five schedules (levels) of controlled substances.  The government made Schedule V is the least severe category and Schedule I as the most severe.  Marijuana is considered a Schedule I drug, which means that it has a high potential for abuse, has no medicinal value, and cannot be used safely even under a doctor’s supervision.  The federal government thinks with the current scientific information known about Marijuana that there is little to no redeeming value for the drug.

Arizona on the other hand found some medicinal value in marijuana when the majority of the state’s voters passed the law.  Proponents of the state enacted legislation say it is within the traditional power of the state to define health care treatments.

The CSA makes it unlawful to knowingly or intentionally, manufacture or create with the intent to distribute, Title 21 U.S.C. § 841. This means that any cultivation or distribution (medical marijuana dispensaries) are in violation of the federal law.

Arizona Medical Marijuana Act

In 2010, the voters of Arizona approved Proposition 203 by just more than 50% of the vote.  The law is codified as the Arizona Medical Marijuana Act (AMMA), § 36-2801 et seq. Arizona is currently one of twenty states that permit medical marijuana usage.

The law removes state level criminal penalties for the use and possession by patients who have “written certification” from their doctor for the state-approved conditions.  Only individuals “debilitating medical conditions” are eligible candidates for medical marijuana.  Arizona classifies cancer, glaucoma, positive status for HIV, AIDS, hepatitis C, ALS, crohn’s disease, and agitation of alzheimer’s disease as qualifying conditions.  This list is not set in stone because § 35-2801.01 permits the public to petition the Arizona Department of Health Services to include additional medical conditions.

An interesting part of this law is that is that “qualifying patients” eligible to fill prescriptions is not limited to citizens of Arizona.  Section 36-2801(17) of the statute carves out room for “visitors” to the state.  In theory a person who visiting the state and has previously been diagnosed with a debilitating medical condition, could get their prescription filled while in Arizona.  It is unclear how this works in practice.

The statute also sets limits on how much marijuana a qualifying patient may have at any one time.  Any one individual with a state issued medical marijuana card may two and a half ounces of marijuana.  Then additionally, if the state issued medical marijuana card indicates it, an individual may also may grow up to twelve plants.

The rights of medical marijuana users are protected against discrimination because of usage.  Among the listed protections listed in § 36-2813 are in housing, employment, and in child custody disputes.  This is an important area of the law because even though the majority of Arizonans passed legislating approving medical marijuana, not everyone may share the same views and could try to discriminate against qualifying patients.

There is much more that goes into Arizona Medical Marijuana Act.  I just tried to detail what I viewed as the major parts of the legislation.

Arizona Attorney General Opinion

Predictably, when the Arizona Medical Marijuana Act passed there was some apprehension with how, or if, the state law could be reconciled with the federal Controlled Substances Act.   Consequently, many County Attorneys from across Arizona asked the Arizona Attorney General to give his official opinion on behalf of the State on the legal implications.

Attorney General Opinions are issued when requested by the legislature (or either house of the legislature), any public officer of the State, or a county attorney, on a question of law relating to their office.  The opinions are of public record in which the public can access and read via the Internet.  Arizona Attorney General Tom Horne obliged the requests and gave his opinion.

The issue considered is whether the federal law trumps the state law.  The AG Tom Horne concludes that part of the law is in conflict, and part of the law is not.

The AMMA provisions and related rules that pertain to the issuance of registry identification cards for patients and caregivers are not preempted because they merely serve to identify those individuals for whom the possession or use of marijuana has been decriminalized under state law and, therefore, not authorizations to violate federal law.

Horne’s analysis is centered on the Supremacy Clause of the United States Constitution.  His legal reasoning is murky, but the case law he cites provides a nice legal analysis.

The Supremacy Clause states that federal law and U.S. treaties are the supreme law of the land, U.S. Const. art. VI, cl. II.  This only applies if the laws conflict with each other.  So the next step is to see if they conflict, or when the local law is preempted by the federal law.

In Attorney General Horne’s analysis he determines the AMMA is preempted only when it authorizes cultivation, selling and dispensing of marijuana.  Horne claims the rules regulating ID cards for patients and caregivers “are not preempted because they merely serve to identify those individuals for whom the possession or use of marijuana has been decriminalized.”

If this does not explain a whole lot, do not feel bad.  I feel as if Attorney General Horne’s analysis is rather conclusory, and really does not provide a lot of substance.  I will try to fill in some of that substance here.

There Supreme Court has denoted several types of preemption.  These look at the express language, if there is any conflict between the two pieces of legislation, if the state legislation creates an obstacle to adhere to the federal legislation, and if they are both occurring in the same field.  Other than looking at the express language, the other three types of preemption are implied preemption.  Because the court is not looking at the direct language in each of the bills to see if there is a problem, they look to outside factors like the intent of each legislative body. The Supreme Court currently adopts this ideology.

However, there is a minority of justices / courts whose judicial philosophy is only to look at the express language of the statutes. They arguing that looking away from the statutory text to make the determination is “inconsistent with the Constitution.” Wyeth v. Levine, 555 U.S. 555, 583 (2009) (Thomas, J., concurring in judgement).

The express clause the courts are concerned with is:

No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.

Pack v. Superior Court, 132 Cal. Rptr. 3d 633, 648 (Ct. App. 2011) review granted and opinion superseded sub nom. Pack v. S.C., 268 P.3d 1063 (Cal. 2012).

Because of that provision which is found in the Controlled Substances Act, Title 21 U.S.C. § 841 the question of what is in the authority of the state must be established. However, there is a presumption against preemption in areas traditionally regulated by the state. Hernandez-Gomez v. Leonardo, 917 P.2d 238, 242-43 (Ariz. 1996).  There are a few areas of the Controlled Substance Act that are traditionally controlled by the state.

Regulation of medical practices is typically governed by each individual state. State v. Borah, 76 P.2d 757, 758 (Ariz. 1938).  In present society, it is up to each individual state to license doctors through its state medical boards.  If a doctor wants to practice in more than one state, she must be licensed in each state that she practices in.  Thus, it is up to each state to set their own medical practices.

Land use regulation is typically a state controlled function as well. Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 82 (1946).  Whether it is an issue of zoning or safety regulations, these are typically powers left to the state.

Since the state decriminalized marijuana for qualifying individuals, the act can coincide with the federal legislation.

An example of what is not permissible is to legislate that marijuana be must be tested. A local government “cannot compel permitted collectives to distribute marijuana for testing any more than it can compel a burglar to commit additional acts of burglary.” Pack v. Superior Court, 132 Cal. Rptr. 3d 633, 650 (Cal. Ct. App. 2011) review granted and opinion superseded sub nom. Pack v. S.C., 268 P.3d 1063 (Cal. 2012).  This would be considered distribution because testing facilities are not the targets of the legislation.  Furthermore, I would argue that testing of drugs is typically a federal power conducted through the Food and Drug Administration, falling outside the state’s police powers.


This is a very complex issue.  I hope I provided a reader into some of the basic legal considerations and arguments about medical marijuana on the state level.

Criminal Plea Agreement Restricts Medical Marijuana

Apparently, Yavapai County Attorney Shelia Polk, does not think that those who plead guilty to crimes should be allowed to consume marijuana.

The Yavapai County Attorney’s Office recently started using a blanket marijuana prohibition for all plea agreements.

Defendant shall not buy, grow, possess, consume, or use marijuana in any form, whether or not Defendant has a medical marijuana card issued by the State of Arizona pursuant to A.R.S. § 36-2801, et seq.

Polk v. Hancock, No. 1 CA-SA 13-0292 (Ariz. Ct. App. Feb. 18, 2014).

Once the County Attorney adopted the new anti-marijuana clause for all plea agreements Arizona Superior Court Judge Cele Hancock struck down plea bargain. Judge Hancock found among other things it is a violation of judicial authority under the separations of powers and the rules of criminal procedure.  Sheila Polk did not agree.  The County Attorney then notified Judge Hancock that she would find another judge, who would be more agreeable to the blanket anti-marijuana provision, for all change of plea agreements.

The County Attorney filed a special action and the Arizona Court of Appeals intervened in the matter.

Arizona’s Medical Marijuana Act

Part of the reason the blanket prohibition of marijuana in plea agreements is surprising is because marijuana is legal in Arizona for medicinal purposes.

In 2010, the voters of Arizona approved Proposition 203 by just more than 50% of the vote.  The law is codified as the Arizona Medical Marijuana Act (AMMA), § 36-2801 et seq.  (Et seq. is a legal term that means and following.  It basically means this is the first in a series of laws on the subject, so continue reading the following laws in that chapter.)

The law removes state level criminal penalties for the use and possession by patients who have “written certification” from their doctor for the state-approved conditions — a doctor in Arizona does not have complete discretion to prescribe marijuana for any condition.

Even though medical marijuana is legal in Arizona and nineteen other states, it is still illegal on the federal level.  The contradictory stances taken by the states and federal government provides unclear what is permissible legally.  States argue that it is within their right as a state to decide whether to legalize marijuana or not.  The federal government argues that it is not a state decision, but a federal decision.  There is no judicial consensus on how to treat this states’ rights argument.  However, the Department of Justice has said despite federal law, people who use medical marijuana in accordance with their state’s laws will not face federal prosecution.  Marijuana is still illegal in any way, shape or form federally, the federal government said for now it will respect the state’s decisions.

Plea Agreements

Plea agreements are just signed, written contracts between prosecutors and defendants.  Prosecutors are able to save resources and avoid trials with guilty pleas.  While defendants are likely to receive a lesser sentence than if they went to trial.  Each side gets something out of the bargained for agreement.

According to the United States Bureau of Justice Assistance plea bargains occur in about 95% of federal criminal cases.  It is unclear what the rate is for Arizona, but it is generally accepted that plea bargaining rates in all states are very high.

In Arizona, plea agreements are covered by Rule 17.4 of the Arizona Rules for Criminal Procedure.

The parties may negotiate concerning, and reach an agreement on, any aspect of the case.

— Ariz. R. Crim. P. 17.4(a).

The rule is explained in the comments that the parties may make any agreement they wish, but the court still has to accept the agreement.  Nothing in the plea agreement making process is intended to restrict the court’s duty and power to determine a just and proper sentence.

This is why Judge Hancock said the blanket anti-marijuana provision was a violation of the separation of powers.  Any blanket provision in plea agreements restricts a judge’s ability to determine what is a fair and proper sentence.

Court of Appeals Decision

While the issue of a medical marijuana provision in plea agreements may be a new issue to Arizona courts, the use of blanket provisions or treating all defendants the same has been decided in the past.

The prosecutor has a duty to make an individualized determination of what is reasonably beneficial to the public good given the nature of the specific defendant and crimes and trial judges are required to give ‘individualized consideration’ to plea agreements presented to them.

Polk v. Hancock, No. 1 CA-SA 13-0292 (Ariz. Ct. App. Feb. 18, 2014).

The Court relied heavily upon Espinoza v. Martin, 894 P.2d 688, 689 (Ariz. 1995).  In Espinoza, a group of criminal judges on the Superior Court decided they would no longer accept “stipulated agreements,” (a stipulated agreement in this case is where the prosecutor and defendant agree to a specific punishment). The policy stated that quadrant B judges would no longer accept any plea agreements containing stipulated sentences because sentencing “is a judicial function which should not be subjected to limitations which are imposed by the parties, but not required by law.”  Id.  The Arizona Supreme Court held it is within the judge’s purview to reject individual pleas, but “groups of judges may not  implement policies to automatically reject all such plea agreements.” Id.

The state of Arizona has recognized for years that each plea agreement must be analyzed individually.

The Arizona Court of Appeals applied this logic to prosecutors.  Prosecutors need to look at each situation individually and cannot have blanket clauses.  “A blanket policy that includes a marijuana provision in all plea agreements will not satisfy the prosecutor’s duty to make an individualized determination of what is reasonably beneficial to the public good given the nature of the specific defendant and crimes.” Polk v. Hancock, No. 1 CA-SA 13-0292 (Ariz. Ct. App. Feb. 18, 2014).