Arizona Medical Marijuana Lawsuit Filed by ACLU to Help Boy Receive Plant Extracts

Categories: Medical Weed

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The American Civil Liberties Union filed a lawsuit on Monday in Maricopa County Superior Court to resolve the issue of medical-marijuana extracts for a seizure-plagued boy.

Saying an oil from a low-THC strain of marijuana has dramatically reduced the seizures suffered by 5-year-old Zander Welton, the ACLU and the Weltons are asking the court to declare that extracts are legal under the Arizona Medical Marijuana Act and block County Attorney Bill Montgomery from taking legal action against the family based on his "incorrect" interpretation of the law.

See also:
- Medical-Pot Edibles Are Legal, but Prosecutors and Cops Aren't Backing Off
- Phoenix Police to Medical-Pot Community: "Medibles" Will Be Tested for Extracts
We mentioned the Welton case in our article that covered the crux of the debate behind the lawsuit -- whether concentrates and extracts made from marijuana are legal for qualified medical users, based on the voter-approved 2010 law. The ACLU's lawsuit refers to a follow-up article we published in Valley Fever that contains statements from a Phoenix police spokesman, who told us in an email that police -- based on Montgomery's stance -- believe that extracts including hashish, oil, tincture and even cannabutter are considered "narcotics" under Arizona law, not covered by the AMMA.

As our articles explained, the 2010 law states that qualified users and dispensaries can possess marijuana and "any preparation or mixture thereof." Sounds straightforward, right?

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Not if you're Bill Montgomery, a Republican and social conservative who's been fighting hard to thwart the wishes of voters. After advising the Board of Supervisors to deny zoning information to would-be dispensaries, Montgomery invited the court battle he wanted. He was sued by the White Mountain Health Center, which wants to put a shop in Sun City. That case is slated for oral arguments before the Arizona Court of Appeals on November 27.

But Montgomery's decided to take some out-of-court action against the law he hates, too. He's decided -- as have many other prosecutors around the state, admittedly -- that some preparations of marijuana aren't covered by the law. For reasons unclear to us non-lawyers, he claims a decades-old, unscientific definition of "cannabis" in the law makes extracts of marijuana a felony distinct from the 2010 definition of "usable marijuana."

We've talked to at least one medical-marijuana cardholder who claims he's being prosecuted for possessing a single piece of marijuana-infused candy -- more on him in a future blog post.

Zander Welton's problems are even more serious. In spite of two brain surgeries, Zander continued to have repeated seizures that impaired his ability to walk or sit up. In August, after watching Sanjay Gupta's CNN special, "Weed," the Weltons began to consider medical marijuana. They were somewhat concerned about what their church would think, but a Mormon bishop gave their choice his blessing, the lawsuit states:


Jacob and Jennifer also consulted with a family friend who is a Bishop in the Mormon Church to which they belong. The Bishop told them that the church would approve of their giving Zander marijuana for medical purposes. The Bishop cited The Book of Mormon, Doctrine and Covenants Section 89: 1 0 - 11 : "And again, verily I say unto you, all wholesome herbs God hath ordained for the constitution, nature, and use of man- Every herb in the season thereof, and every fruit in the season thereof; all these to be used with prudence and thanksgiving."


They obtained approval from the Arizona Department of Health Services, which issues medical-marijuana cards. Then they began Zander on a treatment regiment that included an oil prepared from a marijuana strain that's very high in cannabidiol, but low in THC, the chemical that gives users a buzz.

The results have been dramatic, the lawsuit says. Zander's development has been progressing in all areas, and he's only had two seizures since the treatment began.

In late August, though, DHS Director Will Humble published a warning against possessing or making concentrates, citing the concerns of law enforcement. The Weltons reluctantly stopped using their special oil due to fear of prosecution. They put Zander on a diet that includes lots of dried plant material in his pudding or applesauce. But that's inconvenient and may not work as well, the suit says: "Eating a dried plant is not palatable for anyone and is particularly hard for Zander given his physical limitations. He frequently has difficulty eating as much plant material as is necessary for this new treatment regime..."

Montgomery might be happy to believe he's got another shot at derailing the state law based on the federal prohibition of marijuana, which the feds don't currently care about in states with laws like Arizona's. But this case could also cost him a few points in public support, because people might believe he's interpreting the law for his own political gain at the expense of a kid. That's certainly what the ACLU believes.

"Why go out of your way to twist the meaning of the law so you can deny a sick child his medicine?" asks Emma Andersson, staff attorney with the ACLU's Criminal Law Reform Project in New York City. Montgomery has "an ideological interest in this, and he's putting it before the interests of patients, and putting it before respect for the law."

Click here to read the ACLU's lawsuit on behalf of Zander Welton.

The New York Times published an article about the lawsuit this morning with a picture of the Weltons.


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7 comments
davewk2002
davewk2002

Only a barbarian or an Arizona Republican would deny a medicine that has been shown to work for a child.  Montgomery might be an alright county attorney if he spent more time actually doing his job and less time trying to overturn every initiative that voters pass.

One_Pro_Se
One_Pro_Se

Great reporting as always Ray! We should do lunch ;)

Ok, here is the perspective from someone that is also being prosecuted for some ridiculousness involving the "cannabis v narcotics" debacle. It's garbage. Prosecutors are trying to get as many people to "flip" and take a plea as possible before the curtain gets pulled on their little charade. 

I wrote a little something on this and a few other problems within the AMMA and the court system right now. Anyone interested in reading it can go to the 'notes' section of my facebook. One of the other problems is patient to patient sales/transfers that people are being prosecuted for are ALSO explicitly allowed for under the AMMA. Yet people have been told over and over in the media by Humble, Horne, Montgomery and all their cronies that such activity is illegal under the AMMA.

At this point you all should be asking yourselves "is this guy nuts?!"
and I expect that, until you read this little ditty taken from my post;
 "The AMMA states in section 36-2815 (C) ANY CARDHOLDER WHO SELLS MARIJUANA TO A PERSON WHO IS NOT ALLOWED TO POSSESS MARIJUANA FOR MEDICAL PURPOSES UNDER THIS CHAPTER SHALL HAVE HIS REGISTRY IDENTIFICATION CARD REVOKED, AND SHALL BE SUBJECT TO OTHER PENALTIES FOR THE UNAUTHORIZED SALE OF MARIJUANA AND OTHER APPLICABLE OFFENSES. D. THE DEPARTMENT MAY REVOKE THE REGISTRY IDENTIFICATION CARD OF ANY CARDHOLDER WHO KNOWINGLY VIOLATES THIS CHAPTER, AND THE CARDHOLDER SHALL BE SUBJECT TO OTHER PENALTIES FOR THE APPLICABLE OFFENSE.
We take careful note not to diminish the plain wording of the law as it states in specific "any cardholder who sells marijuana to a person who is not allowed to possess marijuana for medical purposes under this chapter." It was Hayes' belief that the comment made by AZDHS Director Will Humble was removed from his blog because there were two factual inaccuracies within its text.

The first being that the State prosecution office, in specific Bill Montgomery, had made public statements regarding the enforcement of a 1960 narcotic code which would be in direct conflict with the wording of the AMMA. The second being that registered medical marijuana patients could in fact sell marijuana to other persons allowed to possess marijuana for medical purposes under the AMMA as section 36-2815 (C) confirms by limiting the sale of medical marijuana to a "person allowed to possess marijuana for medical purposes under this chapter" by making the sale of marijuana to any unauthorized person a potential criminal act and subject to the penalties listed therein."

Now t
extual canons are legal rules of thumb for understanding the words of the statutory text. Some of the canons are still known by their traditional Latin names so we offer the following for the reader/judge/jury:

Reddendo singula singulis or "Rule of the Last Antecedent" ("refers only to the last")-- When a list of words has a modifying phrase at the end, the phrase refers only to the last, e.g., firemen, policemen, and doctors in a hospital. 
I bet if everyone looks at that little section of the law they thought they knew so well, they might start thinking differently.
Here it is, 
"
B. A registered qualifying patient or registered designated caregiver is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege, including any civil penalty or disciplinary action by a court or occupational or professional licensing board or bureau:
3. For offering or providing marijuana to a registered qualifying patient or a registered designated caregiver for the registered qualifying patient's medical use or to a registered nonprofit medical marijuana dispensary if nothing of value is transferred in return and the person giving the marijuana does not knowingly cause the recipient to possess more than the allowable amount of marijuana.

Notice the restriction is only applied to a dispensary receiving marijuana if you were to follow the rules of statutory construction, as a judge SHOULD do, and would do, if the issue ever actually made it there.

It doesn't because the state is incapable of determining what is "cannabis" and what is "marijuana" because after all, you are testing for the same compounds. They also cannot determine how much "cannabis" aka marijuana is in one of the sweet little candies so that evidence will be blocked by any decent attorney.

Sounds like a GIANT waste of tax dollars to me. Not to mention how much it will cost the State when individuals like myself will be seeking damages after the charges are dropped or we are acquitted by a judge/jury. In my particular case the State is trying to place me in "celebrity status" so a jury might be out of the question, according to the rumors around the water bottle. I however like due process and just don't feel I would receive a fair trial if it were not done by a jury of my peers.
You know, the same electorate that may or may not have voted for this law to begin with.

Oh, so much to tell Ray, soooo much. Hit me up.

Stay SAFER ARIZONA!!

1 <3 AZ

elmergantry71
elmergantry71

This trial will be great fun, and a PR disaster for Monty! Well-played, sir! You found yourself a tar baby.

dtmac
dtmac

Does anyone have a recall going against this turd yet?


1959cutter
1959cutter

I bought a mobile home onetime from a crook that looked exactly like monty,the guy drove a lexus and wore flashy jewlry,but was terrified of random violence...sounds like the same guy!

Necropolis
Necropolis

Bill Montgomery denies Gods medicine  to one of Gods sick children. I wonder how he thinks that will get him into heaven. Good luck with that Bill Montgomery. I wouldn't want to be you on judgment day. The Mormon Bishops words say it all, no matter what your religious affiliation is.

eric.nelson745
eric.nelson745 topcommenter

Keep your government hands off my stash! Anyway, my modest lil' ole farming operation is protected by booby traps and round-the-clock video surveillance! So be warned! Hehe. And you go, ACLU!

* Note to Joe and Monty: I'm only joking. Can't you tell?

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