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Arrest of medical marijuana patient on campus illegal, court rules

(Deposit Photos/Uros Poteko)

(Deposit Photos/Uros Poteko)

Medical marijuana patients are free to have their drug on college and university campuses without having to fear arrest, the Arizona Supreme Court ruled Wednesday.

The justices said the 2010 Arizona Medical Marijuana Act gave those who have certain medical conditions permission to obtain up to 2 1/2 ounces of marijuana every two weeks.

That initiative also sets out specific places where even those entitled to otherwise use the drug legally may not have it. That includes school buses, public schools and correctional facilities.

Two years later, responding to concerns by university officials, lawmakers added the language at issue here, expanding those prohibited zones to college campuses and making violations a felony.

But in the unanimous ruling, the justices pointed out that the Arizona Constitution forbids lawmakers from altering what voters have adopted unless the change “furthers the purpose” of the initiative. Making criminals out of medical marijuana users, they said, does not.

Justice John Pelander, writing for the court, acknowledged the concern expressed by university officials that allowing marijuana on campus would run afoul of federal laws and could mean the loss of federal funding. It was that fear that resulted in the 2012 amendment.

“But a university does not have to guarantee prosecution for violations of its program,” Pelander wrote.

He noted there are other options, citing the policy at Arizona State University which makes anyone in possession of illegal drugs subject to disciplinary or administrative sanctions. And marijuana does remain illegal in all forms under federal law.

And he said if college and university officials are so inclined they can even refer violations to federal prosecutors.

But none of that, Pelander said, allows state lawmakers to authorize the arrest and prosecution of medical marijuana users under state laws for possessing the drug on college and university campuses.

Wednesday’s ruling is most immediately a victory for Andre Maestas, an Arizona State University student. It means his conviction will be overturned.

It also paves the way for any of the state’s other more than 160,000 medical marijuana patients to have their drugs on campuses without fear of arrest and prosecution under state law.

But Thomas Dean, who represents Maestas, said the implications of the decision extend far beyond medical marijuana. He said it spells out clearly and firmly that lawmakers cannot second-guess and alter what voters have approved.

“If the Legislature was able to get away with here tampering with a voter-passed initiative, and to do so in a way that’s contrary to its stated purpose … then the camel’s nose is under the tent and they’d be able to do the same thing to all voter initiatives, past, present and future,” Dean said. And that, he said, makes the ruling important even for those who are not supporters of medical marijuana.

“This is an affirmation of their constitutional rights to pass a voter initiative,” Dean said. “And the Legislature cannot modify or repeal it.”

Maestas was arrested in 2014 on a charge of obstructing traffic after ASU police found him sitting at an intersection. A search of his wallet produced a state-issued medical marijuana card.

When police questioned him about it, Maestas admitted to having marijuana in his dorm room. That gave police what they needed for a search warrant, coming up with about 0.4 grams of the drug — less than 0.02 ounces — far below the amount of medical marijuana users are legally allowed to possess.

Maestas was originally charged with a felony under the 2012 law. But prosecutors reduced that to a misdemeanor, which meant he was not entitled to a jury trial.

Maricopa County Superior Court Judge Dean Fink found Maestas guilty, placed him on unsupervised probation, and imposed a $1,000 fine.

Maestas then appealed.

Pelander rebuffed the contention of the Attorney General’s Office that expanding the list of prohibited places “furthers the purpose” of what voters approved in 2010.

He pointed out that the Arizona Medical Marijuana Act specifically says the purpose of the law “is to protect patients with debilitating medical conditions … from arrest and prosecution and criminal and other penalties” for using medical marijuana

“Criminalizing AMMA-compliant marijuana possession or use on public college and university campuses plainly does not further the AMMA’s primary purpose,” Pelander wrote. He said the 2012 law does not “protect” medical marijuana patients from being arrested “but rather subjects them to such penalties.”

And what all that means, the justice wrote, is that 2012 change violates the constitutional ban on legislative tinkering with voter-approved measures.

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