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
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 response to State v. Jones, members of the
medical marijuana (MMJ) business community have come together to challenge the
In June 2018, dispensary operator Cave Creek Cannabis, a dba of Non Profit Patient Care Center, Inc., filed motions to intervene in the
appeal of the Jones ruling and for the appellate court’s reconsideration of its
ruling. Cave Creek Cannabis filed on behalf of its business and patients
negatively affected by the ruling.
On July 17, 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 has “no
opinion” on the ruling and is 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.
Sacks Tierney will continue monitoring responses of the
MMJ community to the Jones decision and will periodically post updates to its
website, or please call or email one of our MMJ attorneys (see below) for more
information and assistance.
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. It appears that
the Court has fast-tracked this review, which could mean that the Court believes
this case poses important precedent(s) to the State, requiring rather immediate
supplemental briefs were due by February 11, with responses due by February 21.
Oral arguments are set for March 19 at 10:00 AM in
Armstrong Great Hall, ASU Sandra Day O'Connor College of Law, 111 E. Taylor St.,
It would not be unreasonable to expect a decision before the end of the year.
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
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.
 110 Ariz. 84, 87 (1973)
More about Sacks Tierney's
Marijuana Business practice