Arizona Supreme Court Reverses Lower Court Rulings that Would Have Outlawed Cannabis Extracts

May 29, 2019

On May 28, 2019, the Arizona Supreme Court came out with a major decision with respect to the Arizona Medical Marijuana Act (“AMMA”), ruling that the AMMA immunizes the use of cannabis resin, and by extension hashish. Greenspoon Marder partner John “Jack” Pelzer, a Florida Bar Board Certified Appellate Specialist, and partner Sharon Urias filed an Amicus brief on behalf of a client to support the ruling.

In 2013, a trial court in Yavapai County convicted Rodney Jones of possessing 1.43 grams (0.050 ounces) of hashish and “drug paraphernalia” in the form of the jar, even though Mr. Jones had a medical marijuana card as a registered qualifying patient under the AMMA. Jones was sentenced to prison for concurrent 2.5-year terms.

The Arizona Court of Appeals affirmed the conviction, holding that the resin extracted from the cannabis plant did not fall under the definition of “marijuana” under the AMMA. The court tried to distinguish between what it called “the relatively benign flowers of the marijuana” plant from hashish.

One significant problem with the decision was that patients with medical conditions that prevent them from smoking or ingesting marijuana (e.g. patients with ALS or emphysema) could be subject to criminal prosecution if they used, say, a tincture, for pain relief. This decision was thus extremely problematic for patients that rely on extracts for precise dosing of THC and CBD for pain relief, as well as the dispensaries that sell them.

The Arizona Supreme Court overturned the decision, looking to the AMMA’s statutory definition of “marijuana” as “all parts of [the] plant,” without reference to the criminal code or “common understanding” and expressly held that the AMMA defines marijuana broadly. The Court thus rejected the State’s argument that the AMMA limits marijuana use to dried flowers, holding that the AMMA allows the manufacture and preparation of parts of the marijuana plant for medical use, including extracting the resin.

This decision is extremely good news for dispensaries and qualifying medical marijuana patients throughout Arizona who are now protected from prosecution for using extracts or products made from extracts.

Lead Greenspoon Marder attorney, Jack Pelzer, said in a statement:

“We were gratified to see the Arizona Supreme Court accepted some of our arguments that were unique among the appellant and supporting amici curiae, for example: that AMMA’s statutory definition of “marijuana” was free standing, and did not require harmonizing with the Criminal Code definition or consideration of common understanding; and that contemporaneous understanding in the media when AMMA was being adopted by referendum was expansive enough to cover all products. The oral argument was even more gratifying, as the justices quoted our arguments regarding the inevitability of ostensibly illegal “finger hash” when handling legal leaves or flowers, and the inability to make a medical product simply by adding dried leaves or flowers to brownie batter.”

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Arizona Supreme Court Reverses Lower Court Rulings that Would Have Outlawed Cannabis Extracts

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