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Court Holds Arizona Medical Marijuana Statute Does Not Permit Possession of Hashish

Recently, an Arizona appellate court issued a written opinion in a case involving the defendant’s possession of a small amount of hashish, requiring the court to determine if the defendant was protected under the Arizona Medical Marijuana Act (AMMA). Ultimately, the court concluded that the AMMA – which does not specifically mention hashish – does not afford protection to qualifying patients found in possession of the substance.

The Facts

The defendant was a “qualified patient” under the AMMA, meaning that he was able to obtain and use marijuana for medical purposes. In March 2013, the defendant was found in possession of .05 ounces of hashish oil. The defendant sought dismissal of the charges based on the fact that he was a qualifying patient under the AMMA, but the court rejected the defendant’s motion. The defendant then proceeded to trial in front of a judge alone, where he was found guilty and sentenced to 2.5 years’ incarceration for the hashish and a concurrent term of one year incarceration for possession of drug paraphernalia (the jar containing the hashish).

The defendant appealed his conviction, making the same arguments on appeal. However, the court affirmed his conviction. The court began with an explanation that, when it comes to voter-enacted laws such as the AMMA, it a court’s job to “give effect to the intent of the electorate.”

The court then noted that both parties agreed on much of what the case was about, and the only question the court had to answer was whether hashish was “included within AMMA’s immunities.” The AMMA defines marijuana as “the dried flowers of the marijuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks and roots of the plant.” Thus, the defendant claimed that hashish was a preparation of the marijuana plant. The prosecution claimed that hashish was not covered by AMMA because it is “merely the separation of one part of the plant from another.”

The court agreed with the prosecution. The court noted that nowhere in the AMMA is hashish mentioned. The court then went on to explain that, had lawmakers intended to include hashish within the AMMA, it could have been added into the law’s text. By not specifically adding hashish into the AMMA, the court held that it was considered excluded. Notably, one judge did dissent from the court’s opinion, holding that he would have determined hashish to be covered under the AMMA.

Have You Been Arrested for Drug Possession?

If you have recently been arrested for drug possession in Arizona, contact Attorney James E. Novak to discuss your case. While Arizona’s drug laws are loosening in some regards, that is not the case across the board. Many defendants are still charged for possession of a small amount of a controlled substance and face serious consequences if they are convicted. Attorney Novak is a dedicated Arizona criminal defense attorney with decades of experience handling Arizona DUI cases and other criminal matters. Call 480-413-1499 to schedule a free consultation today.

Additional Resources:

Other Articles of Interest from The Law Office of James Novak’s Award Winning Blog:

Court Discusses Accomplice Liability in Recent Arizona Robbery Case, Arizona DUI and Criminal Defense Attorney Blog, July 19, 2018

Arizona Court Determines Defendant Consented to Extended Traffic Stop, Arizona DUI and Criminal Defense Attorney Blog, August 14, 2018

Recent Supreme Court Case Protects Privacy of Cell Phone Location Data, Arizona DUI and Criminal Defense Attorney Blog, July 5, 2018


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