Medical-Pot Card Doesn't Provide Immunity to People With More Weed Than Law Allows, AZ Appeals Court Affirms; Patient-to-Patient Transfer Still in Question
Medical-marijuana cardholders can be prosecuted when they possess too much weed or do something else that falls outside the boundaries of state law, the Arizona Court of Appeals ruled last week.
Image: Jamie Peachey
It sounds like a no-brainer -- break the law, you could be prosecuted. But the voter-approved 2010 Medical Marijuana Act was rather revolutionary and continues to present legal dilemmas for the Arizona justice system. The appeals court, in the same ruling, declined to clarify whether the 2010 law prohibits patients from selling pot to other patients, as some county prosecutors say it does.
The May 17 ruling came after Tucson resident Justin James Chase, busted in October 2012 after an undercover cop answered his Craigslist ad for marijuana for sale, argued that he may have been in possession of more than the legal limit of 12 live plants and 2-and-a-half ounces of dried pot, but that he should only be prosecuted for the amount of weed in excess of those limits.
A trial court ordered that the case be remanded back to the grand jury in part so jurors could consider the possibility that he could be right. In other words, they were to consider two interpretations of the law -- that of the prosecution, and that of Chase.
The state, in this case a prosecutor with the Pima County Attorney's Office, responded to the order by filing a special action with the Court of Appeals.
Pima County wanted a ruling that:
...the AMMA's presumption of medical use is "entirely rebuttable so that an individual who exceeds the protections of the law cannot claim partial protection under the same law" and "rule that a medical marijuana cardholder who is authorized to cultivate marijuana is criminally liable for all of the marijuana he grows if he exceeds the protections of the law."
Presiding Appeals Court Judge Garye Vasquez, with Judges Virginia Kelly and Philip Espinosa concurring for a 3-0 decision, agreed that the presumption of immunity "may be rebutted by a showing that the cardholder was using or possessing the marijuana for reasons other than medical use."
"Once rebutted," the judges went on, "the presumption disappears and the cardholder may be charged with marijuana-related offenses."
The judges noted that the law's language states that a cardholder may not be prosecuted "if the registered qualifying patient does not possess more than the allowable amount of marijuana." Exceed it, and all bets are off.
The judges still remanded the case back to the grand jury, so that jurors can consider the true weight and number of plants, once that's determined. But the jurors cannot consider Chase's interpretation of the law.
Interestingly, the appeals court left undecided the issue of whether the AMMA prevents patients from giving their grown pot to other patients in return for "value," or just prohibits giving weed to dispensaries for "value." The appellate judges note that no trial court has adequately weighed the evidence in that debate, and so they won't consider it.
The distinction is one justification used by the state's many cannabis clubs, which typically claim to be collectives of cardholders and legal growers who are legally transferring pot to patients. Some owners of the burgeoning legal dispensary have asked authorities to crack down the clubs, but this ruling fails to give any guidance on the issue.
The medical-pot law will be keeping lawyers and judges busy for some time to come.
Got a tip? Send it to: Ray Stern.