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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.

See: State of Arizona v. Rodney Christopher Jones | Sacks Tierney's Marijuana Business Law practice

 

Citing State v. Bollander[1], the Court of Appeals reminded the parties that the terms “hashish,” “cannabis” and “marijuana” are afforded different treatments under Arizona law.

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.”[2]

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.[3] “Mixture or preparation” means the combining of marijuana with non-marijuana elements to make “consumables” such as brownies and the like.[4] The Court found that the AMMA does not immunize hashish, nor does it address hashish.

DHS Response

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.

Appeal

In September 2018, attorneys for defendant Rodney Jones filed a Petition for Review with the Arizona Supreme Court.

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 amicus 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 customers.

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.

Contact Us

Sacks Tierney attorneys Janet Jackim, Judy Dworkin, Matt Winter, 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.


[1] 110 Ariz. 84, 87 (1973)

[2] A.R.S. § 13-3401(4)

[3] A.R.S. §§ 36-2801

[4] A.R.S. § 36-2801(15)

 

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