Court of Appeals: Hashish
Possession Not Protected by the AMMA
“Hashish,” “cannabis” and “marijuana” are afforded
different treatments under Arizona law.
On June 26 the Arizona
Court of Appeals ruled that a card-carrying medical marijuana patient can be
prosecuted criminally for possessing a small amount of hashish.
State of Arizona v. Rodney Christopher
Jones | Sacks Tierney's
Marijuana Business Law practice
Citing State v.
the Court of Appeals reminded the parties that the terms “hashish,”
“cannabis” and “marijuana” are afforded different treatments under Arizona
Hashish is widely
recognized as “‘the resin extracted’ from the marijuana plant.”
Pursuant to Arizona’s criminal code, cannabis is defined as “[t]he 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,” and “[e]very compound manufacture, salt,
derivative, mixture or preparation of such resin or tetrahydrocannabinol.”
In State v. Jones,
the Court of Appeals ruled that the protections afforded qualifying patients
who possess or use medical marijuana under the Arizona Medical Marijuana Act
are limited to a mixture or preparation of the marijuana plant.
“Mixture or preparation” means the combining of marijuana with non-marijuana
elements to make “consumables” such as brownies and the like.
The Court found that the AMMA does not immunize hashish, nor does it address
In July 2018, a Sacks Tierney staff member spoke with
Robin Rodriguez, Chief of Operations for Medical Marijuana Services at the
Arizona Department of Health Services, concerning the Department’s response to
and interpretation of the Jones ruling.
Ms. Rodriguez stated that the Department had “no
opinion” on the ruling and was advising patients and persons involved in the
medical marijuana business to read the Arizona Medical Marijuana Act and
regulations promulgated thereunder for guidance on their respective activities.
Ms. Rodriguez also stated that, in the event law
enforcement takes action against a patient or business as a result of the Jones
ruling, the Department will take no action of any type in response. She
acknowledged that the Department has been inundated with phone calls from
patients and persons serving patients inquiring about the continued use or
distribution of medical marijuana in light of this ruling.
In September 2018, attorneys for defendant Rodney Jones
Petition for Review with the Arizona
In January 2019, the Arizona Supreme Court accepted
review of the appeal, and briefs were submitted shortly thereafter. In addition
to appellate briefs filed by Mr. Jones and the State (by the Yavapai County
Attorney’s Office), nine amicus curiae briefs were filed by persons and
companies uniquely affected by the appellate Court’s decision, eight of which
were in support of Mr. Jones.
On February 20, 2019, Sacks Tierney attorneys Gaye
Gould, Janet Jackim and Phil Rudd filed an
brief (view here) on behalf of doctors Gina Mecagni Merman, M.D., Jeffrey A.
Singer, M.D., The Society of Cannabis Clinicians, David J. Casarett, M.D., M.A.,
and James B. Adams, Ph.D., who, among other evidence, advised the Supreme Court
that scientific and medical studies and the U.S. Food and Drug Administration
already establish that cannabis and cannabinoids benefit patients dealing with a
variety of illnesses and symptoms. The medicinal effect, these doctors stated,
is in the cannabinoids of the resin, which must be extracted from the plant. By
excluding resin from the immunity provisions of the AMMA, the lower Court
erroneously limited the use of medical marijuana to smoking dried flowers which,
for many patients, is an inappropriate treatment application.
On March 19, 2019, in an auditorium at Arizona State
University’s Sandra Day O’Connor College of Law, 300 members of the public,
cannabis industry leaders, the three Sacks Tierney attorneys, activist groups
and ASU law students heard the parties’ arguments before the Arizona Supreme
Court. The justices had obviously prepared for the hearing and seemed intrigued
by the issue presented, asking the parties numerous questions and joking about
making cannabis brownies at home.
The Supreme Court’s decision is expected within a few
months. Sacks Tierney will periodically post updates to its website on this
case. Please call or email one of our cannabis attorneys (see below) for more
information and assistance.
Impact on Cannabis Businesses
We don’t know yet how
extensive the effects this ruling will be on cannabis businesses, medical
marijuana dispensaries, and their owners, directors, officers, employees and
The Court’s ruling is
clear that the AMMA’s protections do not apply to possession or use of
hashish. Equally clear is that the possession of hashish carries the risk of
criminal prosecution. But as to products containing the resin of the
cannabis plant (e.g., vapes, dabs and waxes) and/or possession of resin,
that remains to be seen, and we will continue to monitor this issue.
While we cannot provide
general legal advice on this ruling to any person or entity through this
broadly disseminated article, we encourage you to contact your legal advisor
to discuss how this ruling affects you and your business.
Sacks Tierney attorneys
Phil Rudd and
Lauren Reynolds are available to meet with you to discuss steps you
should consider taking in response to this ruling. Please call 480-425-2600 to schedule a discussion or meeting.
 110 Ariz. 84, 87 (1973)
More about Sacks Tierney's
Marijuana Business Law practice