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AMMA Today: What’s Covered, What’s Not Under Arizona’s Medical Marijuana Laws

“Patient-to-patient sales and transfers were never intended under the law.  Why it’s no longer being prosecuted”.   

Medical Marijuana

On-Line Marijuana Purchase Turns Deadly

Recently in Arizona, an incident involving an online Medical Marijuana sale went tragically wrong, and resulted in a shooting death. A 19 year old man answered a Craigslist advertisement from a seller, age 54.  The parties arranged for a meeting to conduct the transaction.

After the seller requested to see the buyer’s Medical Marijuana Card, the 19 year old pulled out a gun and pointed it at the seller.  He had apparently intended to rob the seller of the Marijuana.

But the seller had a gun of his own, and quickly retrieved it.  The seller then fired several shots, one which hit the suspect.  The suspect fled away, while returning fire, hitting the seller’s vehicle. The 19 year old suspect died that evening at a local hospital.

Though the investigation is pending, police were reported as saying that based on what the seller had told them, the seller’s actions were justified from a self-defense standpoint.  No charges have been brought against the seller at this point.

This case was very tragic, and illustrates the importance of exercising caution in both buying and selling of Medical Marijuana among qualified users.

Where Can You Safely Purchase Medical Marijuana in Arizona?  

The laws are strict with regard to where the Marijuana may be purchased. Under the AMMA, a qualified users may only purchase Marijuana from the following sources:

  • A licensed and state approved dispensary;
  • A patient’s designated caregiver;
  • Another qualifying Medical Marijuana Patient;
  • Home cultivation when authorized.

In the case above seller that placed the advertisement on Craigslist to sell it, was a qualified user, and qualified patient-to-patient sales is not a prohibited practice in Arizona.

However, selling “patient to patient” was not initially included in the 2010 AMMA law. According to the Director of the Arizona Department of Health Services, William Hubble, selling in this manner was never intended to be a lawful provision in the program.

The practice became acceptable following a July 2, 2014 Arizona Court decision on a criminal case State of Arizona v. Jeremy Allen Matlock.  

In the case Jeremy Matlock had placed an ad on Craig’s List which offered to give Medical Marijuana in return for a donation of $25.00 per plant.

Matlock’s criminal defense attorney argued that the provision allowed for a qualified user to transfer or sell Medical Marijuana to another qualified user without the threat of arrest or prosecution. The prosecution argued to the contrary. The decision was left up to the judge who concluded that the 59 word provision that contained no commas, under A.R.S. 2811 was ambiguous, and could be interpreted in more than one way.

Under Arizona judicial laws, if language may be interpreted with a dual meaning, or in more than one way, the court must give leniency to the defendant.

On July 2, 2014 the presiding judge in the case, Honorable Judge Richard Fields, decided that the language that applied to the practice of patient-to-patient sales was so confusing that the suspect could not possibly know he was violating the law.  Fields concluded that the language was drafted poorly and needed much work.

Since then, the practice has been accepted for qualified users to sell to other qualified users, as long as the sale meets all other requirements, not in violation of any other AMMA provisions or limitations.

Qualified users see this practice as convenient. While qualified users who sell it, see it as way to profit, and opportunity for Entrepreneurship

Opponents of the practice feel that it leads to safety and law enforcement problems, and abuses; and that it should be appealed. At this point, it is not known if the case will be appealed, or the language of the law rewritten to prohibit patient-to-patient sales and transfers.

A safe practice does not always prove to be lawful. And just because its lawful, does not necessarily make it safe.

AMMA Laws: Past, Present and Future    

It’s been four years since Arizona legalized Medical Marijuana since the voters of Arizona passed the Arizona Medical Marijuana Act (AMMA) by a majority in 2010.  But licensed dispensaries have only been opened for operation and dispensing for about 18 months. After lengthy court battles related to zoning, and criminal prosecution concerns, the program is finally operational and functioning well.

To reflect on where we’ve been and where we are now, you would never know that implementing it was not easy. It faced legal battle after legal battle in civil courts, and many qualified users, dispensaries,   and those with medical or economic interests, pressed on, under the threat of Federal prosecution.

Though Medical Marijuana is legal, those who qualify to use, distribute and sell, are well aware of the narrow limitations that apply under the laws governed by legislation, and created by the Arizona Department of Health Services (ADHS).  The ADHS spent significant economic resources to create these guidelines and help regulatory make sure growers, buyers, sellers and distributors are in compliance.

Among the many reasons the laws exist to make sure that Marijuana is sold safely and only to those who qualify, are sold by licensed sellers and distributors who lawfully sell it, and to make sure it does not wrongly fall into the hands of children.

As of June 30, 2014 there were 52,638 qualified users in the state, 1,231 dispensary agencies, and 502 caregivers.  There were 38,923 new applications pending at that time.

As of June 30, 2014 there were 94 qualified minors in the program.  Use by minors is subject to stringent eligibility and parental supervision guidelines.

Since the passing of the AMMA, the ADHS added Post Traumatic Stress Disorder (PTSD) to the list of qualifying conditions. It will be added with an effective date of January 1, 2015, to allow time for certification of agents, dispensaries, and physicians to develop policies for administration under the guidelines.

The program has been deemed a success thus far, but it continues to evolve.  State regulations, case law, police enforcement guidelines, federal and state legislation, governing entities, medicine, taxing, and other economic influences subject to change, and evolution.  In four more years, the program may look quite different than it does today.

Protections Not Afforded under Arizona Medical Marijuana Laws 

Under the AMMA a qualified user is allowed to purchase and possess 2.5 ounces of Marijuana for treatment and symptoms related to a qualified condition.

If a qualified patient lives more than 25 miles from the nearest dispensary, they are allowed to cultivate not more than 9 plants within an “enclosed locked area”.

There are some state prohibitions however, even with Medical Marijuana.  The AMMA does not authorize users to engage in any of the following activities:

  • It does not allow a person to drive, or operating any vehicle, aircraft, or boat while impaired to the slightest degree as a result of being under the influence of Marijuana solely or in combination with other drugs or alcohol;
  • It does not authorize a person to undertake any task while under the influence, that may result in negligence or professional malpractice;
  • A qualified user is not authorized to possess or use on a school bus, or any pre-school through high school grades;
  • It does not authorize use of Marijuana in a public place or on public transit;
  • It does not require federal assistance programs or health insurers to pay any costs associated with Medial Marijuana use;
  • It does not require an owner of private property, or an employer of a work place to allow the use of Marijuana on their property or at work.
  • It does not prevent medical facilities, nursing care, hospitals, or other health care facilities from adopting their own necessary and reasonable restrictions on the AMMA guidelines related to storage and use of qualified patients for their safety and the safety of other residents.
  • No person under the age of 18 may use Medical Marijuana unless they are examined by a doctor; the parent or guardian of the patient applies on their behalf, and a parent or guardian serves as a designated caregiver.

Out of State Card Holders

Under A.R.S. 36-2804 a qualified user registered in another state to use Medical Marijuana, may possess and use it. However, the qualifying patient registered outside of Arizona is prohibited from purchasing the Marijuana from a dispensary. This is because the dispensaries are prohibited from selling it to unregistered users, not verified by the State’s system.

A “Visiting Qualified Patient” is recognized by law as being one who is not a resident of Arizona; or has been a resident less than 30 days; a person who has been diagnosed with a debilitating medical condition by a medical professional who is licensed authorized to prescribe the drug in their state of residence; or the former State of registry within 30 days of the relocation.

A person may apply and qualify to hold a card in more than one state, as long as they meet all eligibility requirements of the states in which they wish to register.

States that have legalized medicinal Marijuana recognize reciprocity to some extent, in that they recognize qualified cardholders in other states for purposes of use and possession.

However, states may vary with regard to how much may be in their possession, whether or not it can be purchased, and other various provisions.

So if a user is a registered, qualified card holder in Arizona, and plans to visit another state, it is important that they become familiar with the guidelines and laws pertaining to out of state users and possessors.  Users visiting or relocating to a different state are bound by the laws,  and prohibitions while in that state.

States v. Federal Laws in Legalizing Marijuana

Despite the fact that 23 states have legalized Medical Marijuana and two states have legalized recreational Marijuana, the Federal Government still prohibits Marijuana in all forms, and for all uses.

Not only is it prohibited under Title 1 of the United States Code (USC) 21 Controlled Substances Act, but it is classified as a “Schedule I Drug”.  The Federal Drug Law categories drugs into 5 classifications with Schedule I drugs considered to be the most dangerous and addicting.

Much controversy, inconsistencies in prosecution, and litigation has surrounded the conflict of Federal Prohibition and State Legalization of Marijuana.

Historically, the Government has been granted supremacy in the event that there is a conflict with state and federal laws. However, the Government made a the decision not to  enforce criminalization, or to intervene into State legalization laws as they pertain to Medical or Recreational Marijuana, as long as the State’s Marijuana Laws are not violated.

The Federal Government enforces violations of the AMMA act, and similar laws in other states. They reserve prosecution for those violations, as well as serious, violent, or dangerous drug crimes, as well as those involving high level dealers v. street dealers; serious offenses; drug crimes that involve smuggling across borders, drug trafficking, and large quantities.

Criminal Defense for Marijuana Crimes

It is important to be aware that violations of the AMMA guidelines are harsh, and expose a person to both civil fines and penalties, and criminal prosecution, in violation of A.R.S. 13 – 3405.  

All Marijuana drug crimes are charged as felonies, which expose a person prison sentencing in Arizona.  If you or someone you know has been charged with any drug crime, you should consult an experienced criminal defense attorney before going to court for or pleading guilty.  James Novak, DUI and Criminal Defense Attorney, provides a strong defense  in drug cases.  He is a former prosecutor, and exclusive criminal defense attorney serving Phoenix, Mesa, Tempe, Gilbert, Scottsdale, and Chandler Arizona.

 

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