Here We Go Again: Medical Cannabis Extracts at Arizona Dispensaries Deemed Illegal
- Ray Stern
A Navajo County judge's recent ruling about medical marijuana extracts could lead to popular dispensary products like vape cartridges and edibles being taken off the shelves.
Don't freak out: That's a worst-case scenario.
But it's possible, if a higher court ultimately agrees with the judge and rules that "cannabis" is not covered by the Arizona Medical Marijuana Act.
Some cannabis advocates say patients should watch this case closely.
"This is a big deal," said Phoenix cannabis attorney Tom Dean, who's worked on several prominent cases involving the state's medical-marijuana law.
The problem is that the law, which was approved narrowly by voters in 2010, includes a definition for marijuana and "any mixture or preparation thereof." Yet Arizona's criminal code on pot, written prior to 1960, defines both marijuana and a strange substance called "cannabis," which comes from marijuana resin but apparently isn't marijuana. It's officially a "narcotic" under this old law, carrying a stiffer felony designation and penalties.
Earlier this month, authorities told a grand jury that a 26-year-old Prescott man with a valid medical-marijuana card was not legally allowed to possess a few grams of extracted resin, or "cannabis" — despite the fact that half or more of the products for sale at Arizona dispensaries contain extracted resin.
"After review of the statues the court finds that the the AMMA does not include cannabis," Navajo County Superior Court Judge Dale Nielson wrote in his October ruling. "The court reads that AMMA language of 'any mixture or preparation thereof' as making reference to the dried flowers of the plant and as such, without further definition, or information that cannabis can be extracted from a 'dried flower,' the court cannot find that this would include cannabis."
If you're feeling a touch of deja vu, you're not alone. The basic issue at hand in the Navajo County case was decided in 2014 in Maricopa County, and the Phoenix New Times covered it extensively at the time.
Back in 2013, when the medical-marijuana law was still new, police and prosecutors were reluctant to stop busting cannabis consumers and unfamiliar with the new-fangled world of shatter, vape pens, and hash oil. Maricopa County Bill Montgomery had charged at least one medical-marijuana patient with possession of the narcotic "cannabis."
As New Times wrote in an October 2013 cover article on the subject, extracted resin is used to make — among other things — syrups and tinctures with concentrated THC and another marijuana compound, cannabidiol, (CBD), which has reportedly helped people with seizures. The article also quoted a botanist who called Arizona's criminal definition of cannabis a "confusing mess," noting that "cannabis" is more commonly used as another term of Cannabis sativa, a.k.a. the marijuana plant.
The family of Jacob Welton, a Mesa boy who suffered from a form of epilepsy, felt threatened by Montgomery's policy and sued over the issue with the help of the American Civil Liberties Union of Arizona. Superior Court Judge Katherine Cooper ruled in March 2014 that the medical-marijuana law "authorizes qualifying patients to use extracts, including CBD oil, prepared from the marijuana plant."
Crisis averted — but only in Maricopa County. Cooper's ruling didn't set precedent for the entire state, leaving open a loophole for prosecutors and police.
Then, in March, Arizona Department of Public Safety officers pulled over Jake Ruether on Interstate 40 near Holbrook.
Trooper Lorin Larson told Ruether to "hang tight" in his vehicle for a moment, according to court paperwork, but Ruether began to get "agitated and verbally combative" after being told a drug-sniffing dog was on the way. A police report wasn't available last week, and what happened next is unclear at this point. Troopers found "marijuana, THC oil, five vape pen cartridges, and 12 THC wax dabs" in his vehicle, records show. Ruether was taken to jail under suspicion of possession of narcotics, felony flight, and aggravated assault.
Later, prosecutors with the Navajo County Attorney's Office took the case to a grand jury in July, as an August 24 motion by Ruether's attorney, Jon Saline, explains. An unnamed prosecutor told the charging panel that Ruether had intended to sell the illegal "narcotic" drug of cannabis.
A grand juror asked during the proceeding whether Ruether's medical-marijuana card entitled him to possess cannabis. DPS Trooper Jared Lampsa informed the panel that as far he could tell, "the medical marijuana act ... does not authorized a person to use or possess cannabis."
Lampsa told the grand jury that the reason the state believes Ruether possessed "cannabis" for sale rather than for personal use was because of the way it was packaged. A dispensary would normally put pieces of wax "in smaller clear or plastic or glass vials," but the wax was found in 12 "individually wrapped" packages, the August motion states.
The several grams of wax was well under the 2.5-ounce possession limit for authorized cannabis patients. By dabbing the wax, a technique that involves vaporizing small chunks of the concentrated-THC product, a patient could conceivably consume a few grams in a day or two.
The grand jury ended up charging Ruether with possession of a narcotic drug for sale, aggravated assault, false reporting, and disorderly conduct.
Saline's motion argued that the grand jury should have been better informed about the medical-marijuana act: "The prosecutor has thus created out of cloth his own law of the land that ignores or hides from the grand jury what the AMMA actually says."
He compared the situation to a grand jury charging a landlord with burglary for seizing a tenant's property, without the grand jury being told that such an action was legal under the Residential Landlord-Tenant Act. Saline called the prosecutor's presentation to the grand jury "dishonest and misleading."
But in his October 5 ruling, Judge Nielson rejected Saline's motion. The judge declined to remand the case back to the grand jury based on the bad "cannabis" definition and other reportedly inaccurate information that DPS gave in the case.
High potency extract known as "shatter"
Nielson explained that "cannabis," under Arizona criminal law, is "the resin extracted from any part of a plant of the genus cannabis, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or its resin." An exception is given for "oil or cake" made from pot seeds or stalks.
The AMMA, on the other hand, contains no definition for "cannabis," the judge went on, but defines marijuana as "all parts of any plant or the genus cannabis whether growing or not, and the seeds of such plant," and that "usable marijuana" is "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 and does not include the weight of any non-marijuana ingredients combined with marijuana and prepared for consumption as food and drink."
"The court finds that that the AMMA is not a defense to the charge of possessing for sale the narcotic drug of cannabis," Nielson wrote. "As such the court precludes the defendant from raising this as a defense."
The judge also rejected a motion by prosecutors to preclude the defense from using an expert witness, saying the witness could testify about issues like how cannabis is packaged — but must be limited to issues that "do not involve the AMMA."
If Ruether had intended to sell the wax, the crime would fall outside the scope of the medical-marijuana act, and therefore its protections for possession would not apply. However, Saline told New Times that the only evidence he knows of for the "sale" charge is that Ruether possessed the wax in individually wrapped packages.
"Ruether procured all of his medical marijuana from dispensaries," Saline said. "They're just trying to kick out my entire defense."
He said he wasn't sure which dispensaries sold the wax to Ruether, or whether Ruether had receipts for his purchases, adding that the information might be discovered later.
Saline said he plans on submitting a special action and motion to stay the case with the Arizona Court of Appeals in the next week or two.
"They'll take it seriously because it's a gray area of the law," he said of the appeals court. "It's an issue of statewide importance."
Dean said that until the legal matter over extracts is settled, law enforcement outside of Maricopa County could in theory decide to act on the decisions of either county judge — Cooper's extract-friendly decision in Maricopa County from 2014, or Nielson's recent decision that extracts are an illegal "narcotic" even under the medical-marijuana act. Potentially, a police agency in one of Arizona's counties could decide that vape pens or other products in dispensaries are being sold illegally, he said.
The other far-flung hypothetical is that the appeals court, and later the Arizona Supreme Court, could uphold Nielson's ruling on the illegality of "cannabis" extracts. That would deal a serious blow to dispensaries, which already operate on tight profit margins. Products used by some of Arizona's most needy medical-marijuana patients, like kids with epilepsy, would dry up. And if dispensaries go out of business, that would mean more patients could legally grow marijuana at home.
In other words, the Ruether case could lead to total pandemonium in the state's medical-marijuana industry.
But such chaos is not likely.
The appeals court and Arizona Supreme Court have consistently ruled in a manner friendly to medical marijuana and the wishes of voters. Odds are probably high that the appellate courts will make the same decision that Cooper made in 2014 — namely, that the language of the medical-marijuana law allows "patients to employ 'certain process[es]' to 'adapt' marijuana 'for a particular purpose' and a 'convenient and practicable use.'"
Judge Nielson "just plain got it wrong," said Gary Smith of the Arizona Cannabis Bar Association, who plans on helping Saline with his defense of Ruether.
Whether the ACLU will help as it did in the Welton case isn't yet known. Welton died of his condition in 2015, but the ACLU may consider a new case on the cannabis issue as a continuation of the boy's fight for his medicine. An ACLU representative said last week that the group is still reviewing Nielson's ruling.
Another theory is that Navajo County prosecutors could change their mind about the strength of their possession-for-sale case and drop the charge, which would end the dispute over "cannabis" for now.
Saline admitted that even without the narcotic charge, the overall criminal case would likely proceed on the other charges.
This isn't Ruether's first offense, either. The former Kansas City, Kansas, resident was arrested at age 18 with stabbing a man "during a fit of road rage," according to a 2010 news article. Court records show that Ruether was sentenced to two years of prison in the case. Ruether's got a few other stains on his record, including a recent assault charge in Prescott unrelated to the March case.
But if the legal questions over "cannabis" as a narcotic aren't settled in Ruether's case, they could resurface in the future in another county.
One or way or another, the issue of whether patients can legally possess extracts, and dispensaries can legally sell them, could someday be decided in precedent-setting opinions by Arizona's appellate courts.
Article and image(s) from: Phoenix New Times