Zander Welton Wins Arizona Medical-Marijuana Extracts Case

Categories: Medical Weed

welton-zander-fb.jpg
Image: Facebook
Zander Welton
In a ruling with wide impact on the Arizona medical-marijuana program, Zander Welton and his family have won their battle to provide extracts to the boy for his seizures.

The East Valley family sued on October 29 in Maricopa County Superior Court, receiving legal help from the American Civil Liberties Union of Arizona, after threats of possible felony prosecution by County Attorney Bill Montgomery.

Judge Katherine Cooper sets Montgomery straight in a ruling filed on Friday, telling him and the state plaintiffs that the Arizona Medical Marijuana Law "authorizes qualifying patients to use extracts, including CBD oil, prepared from the marijuana plant."

See also:
-Half-Baked: Medical-Pot Edibles Are Legal, but Prosecutors and Cops Aren't Backing Off
-Arizona Medical Marijuana Lawsuit Filed by ACLU to Help Boy Receive Plant Extracts

Montgomery, a conservative politician who's taken a hard line on marijuana issues, never threatened the Weltons directly, but he warned that anyone caught with marijuana extracts, such as oils, might face felony prosecution whether or not they were qualified patients under the voter-approved 2010 Medical Marijuana Act. In recent weeks, though, he dropped one such criminal case against a patient and lost the narcotics argument in another.

Judge Katherine Cooper's ruling suggests Montgomery may have reading comprehension problems. She points out, as New Times noted in an October 10 feature article on the subject, that the 2010 law plainly states that marijuana "and any mixture or preparation thereof" is legal for qualified users.

The Weltons claim in their civil lawsuit that their then-5-year-old son's seizures and overall quality of life had been improved considerably because of extracts of marijuana. They sought a declaration from the court about the meaning of the text of the medical-marijuana law, not wanting to be thrown in prison for giving Zander his medicine. The boy had responded best to oil made from cannabis that was richer in the chemical compound cannabidiol or (CBD) than THC, the compound known to produce marijuana's psychoactive effects.

Cooper gives the family the right under state law to re-start Zander's treatment. Sounding somewhat distrustful of Montgomery, Cooper writes, "Unless Plaintiffs have a basis for fearing that Defendant Montgomery may prosecute them regardless of the Court's ruling, an injunction against Defendant is not warranted."

The problem that led to the lawsuit seems to have begun in 2012 with the busts of cannabis clubs and medibles-makers who allegedly sold marijuana without a state license. Montgomery and Yavapai County Attorney Sheila Polk lumped narcotics charges on defendants found in possession of food infused with marijuana extracts.

montgomery-bill-200-wide.jpg
Ray Stern
Bill Montgomery, Maricopa County Attorney.
Montgomery -- and, in fact, other county attorneys around Arizona -- claimed that the voter-approved law was trumped by a decades-old clause in state narcotics law that makes possession of "resin extracted" a serious felony.

Cooper's ruling doesn't mention the word narcotics. Instead, she pulls out the dictionary, defining for Montgomery the words "any," "mixture" and "preparation."

"The effect of these words is to allow patients to employ 'certain process[es]' to 'adapt[]'
marijuana 'for a particular purpose' and a 'convenient and practicable use,'" she wrote, referring to her dictionary findings. She goes on to say:

"Second, the drafters included the phrase "and any mixture or preparation thereof." These words expand the allowable manipulation of the plant. To conclude that patients can only use unmanipulated plant material would render the phrase meaningless. Basic statutory interpretation prohibits such a result...

"Third, the statute provides that medical marijuana can be prepared 'for consumption as food or drink.' Marijuana preparations that are consumed as food or drink may involve marijuana extracts.

An extract is a method of removing material from the plan(t), usually cannabinoids. Extractions facilitate proper dosing and, in some cases, make it feasible for patients who cannot consume the medicine in plant form to receive it another way... Again, the statute itself contemplates patients preparing marijuana in a manner, including extract form to meet their medical needs...

Defendant Montgomery acknowledges that the AMMA means that 'flowers can be
crushed or ground up and added to other foods to be consumed' (Response, p. 9). However, he contends that there is a 'prohibition on concentrating the chemicals in the marijuana flower' in the AMMA... Where? The Court finds no such 'prohibition' in the statute."

"We are thrilled by this decision," said Jennifer Welton in a statement released by the ACLU of Arizona, (she turned down our request for interview). "I am so relieved that we can give Zander the right form of this medication, the form that will provide him with the best benefit and help him have a fuller life. We hope this battle is over and that county officials will stop trying to keep Zander from his medicine."

The ruling has an impact beyond the cases of parents of sick kids and other seriously ill patients, though. It opens up the possibility of Arizona medical-marijuana dispensary sales of hashish, hash oils used for "dabbing," and other concentrates that have been popular in Washington and Colorado since their legalization there for all adults 21 and older. And it seems like it might affect current, if not recent, criminal cases based on a patient's possession of narcotics, in which the "narcotics" was actually a preparation of marijuana.

Montgomery, who this year also lost a Superior Court case in which he'd pushed the Board of Supervisors to prohibit dispensaries from opening on non-incorporated county land, has said he'd like to keep pushing in court until the voter-approved law is overturned.

Got a tip? Send it to: Ray Stern.

Follow Valley Fever on Twitter at @ValleyFeverPHX.
Follow Ray Stern on Twitter at @RayStern.

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64 comments
anitagozukara
anitagozukara

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Warren Klofkorn
Warren Klofkorn

Monty is NOT an idiot. Idiots don't get the kind of academic background he has. Monty is just dishonest and disingenuous. I think he knew all along that his legal gambit in this regard was complete BS. However, it bought him time; time to mess with people he doesn't like at no cost to him personally. Monty is not an idiot, he's just a fool.

Rudy Quinonez
Rudy Quinonez

"Judge Katherine Cooper's ruling suggests Montgomery may have reading comprehension problems." LOL

1959cutter
1959cutter

Bill monty -"she blinded me with science!"

help4azneedy
help4azneedy

@paradoxa26

I believe you posted another statute last night, but I was in a way to drugged out haze to respond. Please re-post. Your kindness is greatly appreciated.

eric.nelson745
eric.nelson745 topcommenter

Mister Montgomery: There a plenty of real criminals in Maricopa County whose cases should be prosecuted with any unnecessary delay. The judge's ruling is pretty comprehensive. The voter-approved statute invalidates the earlier law. That's the bottom line. Now, get busy bringing real crooks to justice. And lay off of drivers who might have some weed in their systems. Unless they are actually driving impaired, leave them alone. Also, don't even think of appealing the judge's decision. You've got important stuff to do, so do it.

shadeaux
shadeaux

Sanity prevails.................of course, whenever sanity prevails in Arizona, there's usually a Republican challenge to change it.

shepherd_of_jerusale
shepherd_of_jerusale

Actually Marijuana is mentioned in the bible by name:


1980, etymologists at Hebrew University in Jerusalem confirmed that cannabis is mentioned in the Bible by name, Kineboisin (Also spelled Kannabosm), in a list of measured ingredients for "an oil of holy ointment, an ointment compounded after the art of apothecary to be smeared on the head. The word was mistranslated in King James version as `calamus' – Exodus 30:23 (Latimer 1988).


The above means it was in the oil they used to rub on their skin, it was in the bread they ate called the Lord's Supper, and it was in the incense that was burned in the temples.


Marijuana is the Tree-Of-Life talked about in the bible, indeed it was a real tree that grew from the ground:


Gen 2:9 And out of the ground made the LORD God to grow every tree, the tree of life was also growing in the garden...


The above reveals that the Tree-Of-Life is indeed a real tree that grows in the ground.


Rev 22:2 In the middle of its street, and on either side of the ocean, was the tree of life. The foliage of the tree are for the healing of the nations.


We are living in a day when the Tree-Of-Life (what the world calls marijuana) is healing everything it comes in contact with.


The ONLY thing dangerous about marijuana are the cops who shoot people for having it:


Number of American deaths per year that result directly or primarily from the following selected causes nationwide, according to World Almanacs, Life Insurance Actuarial (death) Rates, and the last 20 years of U.S. Surgeon Generals' reports.


TOBACCO - 340,000 to 450,000


ALCOHOL (Not including 50% of all highway deaths and 65% of all murders) - 150,000+


ASPIRIN (Including deliberate overdose) - 180 to 1,000+


CAFFEINE (From stress, ulcers, and triggering irregular heartbeats, etc.) - 1,000 to 10,000


"LEGAL" DRUG OVERDOSE (Deliberate or accidental) from legal, prescribed or patent medicines and/or mixing with alcohol - e.g. Valium/alcohol - 14,000 to 27,000


ILLICIT DRUG OVERDOSE - (Deliberate or accidental) from all illegal drugs - 3,800 to 5,200


MARIJUANA - 0


(**Marijuana users also have the same or LOWER incidence of murders and highway deaths and accidents than the general NON-marijuana using population as a whole.** Cancer Study, UCLA; U.S. Funded ($6 million), First & Second Jamaican Studies, 1968 to 1974; Costa Rican Studies, 1980 to 1982; et al. LOWEST TOXICITY 100% of the studies done at dozens of American universities and research facilities show pot toxicity does not exist. Medical history does not record anyone dying from an overdose of marijuana (UCLA, Harvard, Temple, etc.)


Accordingly a 1993 study done by the U.S. Department of Transportation came to the same conclusion as the above concerning marijuana and driving safety:


“Marijuana, administered in a dose of 100 µg THC per kg of whole body weight...did not significantly change mean driving performance as measured...” - U.S Department of Transportation: Marijuana and Actual Driving Performance DOT HS 808 078


The fact is people who use marijuana reflexes are not affected in a negative way and they become more conscious of safety, sometimes refusing to even drive.


Marijuana is a plant with a safety record second to none.


Anyone who would like to dispute these FACTS, point to a credible death that involves marijuana and nothing but marijuana, or hold your tongue.

AFreedomFighter
AFreedomFighter

I cannot believe that there are still politicians and news organizations pushing us away from cannabis (with never an overdose death in all medical history) and on to alcohol, prescription drugs and tobacco which kill over 650,000 annually in the US alone. 

In addition to deaths from alcohol related disease and toxicity, one person is killed every half-hour in the US due to drunk driving. Each year over 16,000 are killed in alcohol related crashes. Alcohol is a factor in about half of all traffic fatalities.   Every 2-3 minutes a person is seriously injured in an alcohol related crash.   Cannabis traffic statistics are almost nonexistent by comparison.  Which is safer?  The answer is obvious.   Cannabis with never an overdose death in all medical history, and no significant statistical record of traffic accidents is clearly safer!  End the lies and legalize.

Esteban Fraijo
Esteban Fraijo

This is fantastic. I hope everyone gets the healthcare they so desperately need. And healthcare should be affordable. If you are worried about the rising price of healthcare and medical inusrance you have to see this! www.HealthSavingsBenefits.com

Jose Castillo
Jose Castillo

In Arizona no less! There is a God. God bless his little heart.

Trommy
Trommy

Monty has such a vitriol against the Medical Marijuana Act and contempt for the will of the people.  What is he really trying to do?  Is he wanting to make sure people still go to jail for the use of a plant, or is he wanting to make sure to keep the criminal enterprise going strong?  If so, is this for the betterment of Maricopa county or is it to support the private prisons.  There may be other reasons, but this doesn't make much sense unless he's just crazy.  I seriously doubt that. 


If he thinks what he is doing will get him more votes then he has not looked at the latest polls.  Prohibitionists much like racists and sexists are a minority now.  He should be voted out and sent packing.  We need people who uphold our laws, not try to make their own for unknown reasons.  This would send a strong signal to the rest of the politicians, Neanderthal thinking is no longer tolerated.

help4azneedy
help4azneedy

I have epilepsy and suffer from chronic pain due to the numerous broken bones I received from falls during seizures. I asked my doctors to prescribe medical marijuana, but they refuse because the say it is "untested", and they say they will refuse to treat me if I go elsewhere. I am physically addicted to benzo's and opiates that are as strong as heroin. I have to take UI's so my doctors will know if I am on Medical Marijuana. This article made me cry because I know there are many people in similar situations to mine. Now these asshole prosecuters want to challenge the AMMA by prosecuting those people who were fortunate enough to get relief through the use of Medical Marijuana? They would rather have us physically addicted to heroin-type drugs and die prematurely. WTF? For those of you who make think I did not try OTC and other remedies, I have. So I guess I will stay at home and take toxic medications and wait to die.

Justin Kuffel
Justin Kuffel

County Attorney Bill Montgomery is clearly an idiot

DonkeyHotay
DonkeyHotay topcommenter

When will the clueless illiterate stoners learn that unless they write legally Clear, Concise, Explicit, Unambiguous marijuana initiatives that comprehensively cover all potential prosecutorial angles, the anti-pot fascists and Rethuglykan law-enforcement jackbooted goons will ALWAYS exploit the loopholes to attack and prosecute people.


The problem with Colorado's and Arizona's Medical Marijuana Initiatives is that they were written by UNTRAINED AMATEURS with NO PRACTICAL LEGAL or LEGISLATIVE experience.


In Colorado, it is still ILLEGAL for a medical marijuana patient or caregiver to make their own Hash Oil concentrate.


In Colorado it is still ILLEGAL -- a FELONY -- for consenting adults to sell even a single gram between themselves privately.


Colorado initiatives FAILED to establish any actual legal right to use marijuana, allowing Employers, Insurers, Landlords and the Government the power to continue to discriminate against marijuana users statewide.





Ra Ra
Ra Ra

Good for him!

salmo60
salmo60

It will be interesting to see if Bill "I want to be Governor" Montgomery will accept the decision of Judge Cooper or file an appeal of her decision. Monty is very demeaning towards women and especially a female Judge that legally slaps him down.

Stay tuned folks, this isn't over!

dtmac
dtmac

I'd like to keep pushing until Montypoodle is out of a job. He clearly has nothing but contempt for the will of the voters of Arizona. Thank you Judge Cooper, the ACLU, and the Welton's. GO TEAM ZANDER !

help4azneedy
help4azneedy

They also like to call Marijauna a "gateway drug", but I think that is laughable. If it was legally prescibed by a licsened physician, there would not be people selling it on the streets.

help4azneedy
help4azneedy

@shepard_of_jerusale

Isn't it ironic that the government will all hippies to take peyote under the guise of relious purposes? I know American Indians use it too, and I support that because that is a practice used by them for actual religious reasons.

paradoxa26
paradoxa26

@help4azneedy

"ARS 36-2813. Discrimination prohibited

C. For the purposes of medical care, including organ transplants, a registered qualifying patient's authorized use of marijuana must be considered the equivalent of the use of any other medication under the direction of a physician and does not constitute the use of an illicit substance or otherwise disqualify a registered qualifying patient from medical care."

If you're refused service, you may want to seek legal advice.

help4azneedy
help4azneedy

DonkeyHotay, I think you need a lesson in Government 101. It is the Legislative branch's duty to write the laws and the Judicial branch's duty to interpret the laws. If every law was written that tried to cover all the bases, we would have laws as complicated as the ACA, which many of the country's legislators hired teams of attorneys to interpret before they passed it. These legislators then passed the ACA because they still didn't understand it! So do not call the people a bunch of clueless illiterate stoners, you are showing you own ignorance. Have you ever tried to help make changes to the AZ government by working inside the government? I have.

Cozz
Cozz topcommenter

@salmo60  

Montgomery as Governor, what a sick thought that is.

1959cutter
1959cutter

@help4azneedy there is a hole the size of a truck in that statement!  LOL

you can buy for a higher price,any controlled substance on the street,bypassing regulation.

help4azneedy
help4azneedy

@paradoxa26

I think you posted another statute last night, but I was in too much of a drugged out haze to answer. Please re-post. Your kindness is greatly appreciated.

help4azneedy
help4azneedy

@paradoxa26

Thank you for posting the statue. However, my doc made me sign a statement that read: "This practice does not support Medical Marijuana as a valid form of treatment and any positive test for Marijuana will result in expulsion from the practice". It was their nice little way of biinding me to a contract. Most of the people I know have had to sign similar contracts.The docs are in bed with Big Pharma, which is another major issue. I believe most of us are between a rock and a hard place. Do you still think I have a case?

help4azneedy
help4azneedy

Thank you for showing me the statute, however, my pain doc made me sign a statement that read: This practice does not recognize Medical Marijuana as a valid treatment for pain, and any positive test for it will result in expulsion from the practice. The Docs are in bed with Big Pharma, until something is done about that issue, most of us are stuck between a rock and a hard place.

help4azneedy
help4azneedy

@ConcernedCitizenAZ I vote and before I became ill, I worked inside AZ government in an effort to make changes. Of course I am only one

person and my efforts were mostly usless. I am making an attempt to show the humanistic side of how this government treats it's taxpaying citizens, make them angry, vote and start working for this awful government. Most people are chasing after the almighty dollar (worthless federal reserve notes), and don't want to take the pay cut in order to make changes, however.

DonkeyHotay
DonkeyHotay topcommenter

@help4azneedy  Both the Colorado and Arizona medical marijuana laws were CITIZEN's Initiatives -- written by well-meaning but legally, politically and legislatively ignorant stoners ... 


... the sad part is that Arizona had -- and squandered -- the advantage of having been able to observe the Failures, Mistakes and Fuck-ups contained in the Colorado Amendment 20, which was in effect for over 8 years before the Arizona Potheads wrote their ballot initiative -- and being brain-dead stoners, they FAILED to consult with, or observe, or remedy the HUGE MISTAKES of Colorado's law before REPEATING many of them.


Badly written laws = bad results


Now Arizona is once again FAILING TO HEED the many mistakes made by Colorado in their phony "legalization" Amendment 64, instead copying and duplicating those same mistakes into Arizona's attempt at phony "legalization".



help4azneedy
help4azneedy

Of course you can, but just maybe legalizing marijuana will take away the "glamor factor" from the it and it will no longer be called a gateway drug. Many kids try alcohol before they use marijuana, but it is not called a gateway drug. I know there will always be people who will sell their presciption meds. These are horrible people who deserve prosecution. My meds are locked up by using a very secure method. I will not tell you or anyone else what it is, but I know nothing is perfect.

help4azneedy
help4azneedy

I can answer that question for you. The docs are in bed with Big Pharma.

help4azneedy
help4azneedy

Thank you. I know you don't want to put yourself at risk. I am so mad at myself for losing the other statute number. I can't do very much computer work at home because it triggers seizures and driving is a big no no. You have been very kind. I can't believe how many people have insulted me on this blog! Great way to treat a sick person who is trying to hang on. They are trying to bully me, and in my opinion it just shows how mean some people can be. So, I am no longer going to try to defend myself.

paradoxa26
paradoxa26

@help4azneedy

I’m not giving legal advice, but since in Az. it is unlawful to discriminate against Qualified MMJ Card Holders (including qualified card carrying patients from other states), it appears your physician is risking his license & practice by exposing it to lawsuits. Your doctor is pitting his/her personal, non-scientific opinion against the Az. constitution. The statute seems unambiguous to me. I just really wonder why your health-care team doesn’t want you to be functionally healthy & pain free.

paradoxa26
paradoxa26

@help4azneedy

I’m not giving legal advice, but since in Az. it is unlawful to discriminate against Qualified MMJ Card Holders (including qualified card carrying patients from other states), it appears your physician is risking his license & practice by exposing it to lawsuits. Your doctor is pitting his/her personal, non-scientific opinion against the Az. constitution. The statute seems unambiguous to me. I just really wonder why your health-care team doesn’t want you to be functionally healthy & pain free.

help4azneedy
help4azneedy

@paradoxa26

I received notification that you sent me something, but when I went to look at it all I could see was my name- no message. Please try your post again. Thank you.

help4azneedy
help4azneedy

Nice, simple answer and I tried that. Then I was accused of "doc shopping" and that's the way it goes. They also like to use the term "seeker" because they think you actually want these toxic substances that you are addicted to. Thank you foe trying to help.

help4azneedy
help4azneedy

@ConcernedCitizenAZ Thank you and you are absolutely correct, but I refuse to sit idly while my meds kill me and keep my mouth shut. Pardon me, but I must step back from the screen now because too much computer usage gives me seizures. Please do not pity me, just remember all of AZ's citizens who are to close to death to even speak.

help4azneedy
help4azneedy

Sick and tired of being sick and tired. Once again, you tried in vain to make me look like a total idiot. This person you say has a reading comprehesion problem graduated Summa Cum Laude from a 4 year nationally accredited University- not some online degree-while working very hard at the same time. Reading comprehension problem? I think not. Go insult someone else. Your words me absolutely nothing to me anymore.

DonkeyHotay
DonkeyHotay topcommenter

@help4azneedy  ... reading comprehension isn't your forte, is it?


The point is that AMATEUR STONERS have NO BUSINESS pretending to be lawyer/legislators and writing crappy initiatives -- they should LEARN from the gross mistakes of other activists in other states and hire PROFESSIONAL, Experienced Legislative / Criminal Lawyers to properly write proposals/initiatives so that anti-pot Prosecutors and Politicians won't have such an easy time derailing and subverting those initiatives once they pass and become law.



help4azneedy
help4azneedy

@DonkeyHotay

I know this was a citizen's initiative, but do you really think the AZ legialators could have done any better? Remember you are shouting at someone who worked inside AZ government and attempted to implement changes. Your name calling, shouting, and use of space tactics are not impressive at all.

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