Sacks Tierney P.A.

Member of Meritas: 173 full-service law firms serving more than 200 markets worldwide

480-425-2600

Follow Sacks Tierney on Facebook

LinkedIn

 

 

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

 

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.

Industry Response

In response to State v. Jones, members of the medical marijuana (MMJ) business community have come together to challenge the ruling.

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.

DHS Response

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.

Appeal

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

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.

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)

 

More about Sacks Tierney's Marijuana Business practice