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Court to determine whether hashish legal for medical marijuana patients

A 10 grams piece of Hashish laid next to a 20 grams piece, isolated on white background. This pieces represent the quantity of three retail units.

A 10 grams piece of Hashish laid next to a 20 grams piece.

The Arizona Supreme Court will decide whether the extracts of marijuana used to make edible products now sold to patients at state-licensed dispensaries are legal.

In a brief order Tuesday the justices said they want to hear arguments by attorneys for Rodney Jones about why his 2013 conviction for possession of illegal drugs and 2 1/2-year prison term is contrary to state law.

Robert Mandel, one of Jones’ lawyers, pointed out that his client is a medical marijuana patient, entitled by the 2010 voter-approved Arizona Medical Marijuana Act to obtain up to 2 1/2 ounces of marijuana every two weeks. Jones had a jar containing 0.05 ounces of hashish, a resin made from the plant.

In a divided ruling last year, the state Court of Appeals upheld the conviction. The majority said that law that legalized marijuana for medical purposes allows patients to possess only forms of the plant itself — flowers, leaves and seeds — and not the resin, or anything made from that.

But Mandel, in asking the high court to review the conviction, said this is about more than his client.

He pointed out that the state Department of Health Services has for years allowed — and even regulated — the sale of alternate forms of marijuana through state-regulated dispensaries. These range from candy and gummy bears to oils that can be administered to children who have been recommended medical marijuana by a doctor for issues like seizures.

In fact Will Humble, who was state health director when voters approved the law, even filed an affidavit with the Supreme Court saying that the rules he crafted, in consultation with the Attorney General’s Office, always considered that the statute allowed for alternate forms of the drug. And he dismissed the contention by Yavapai County Attorney Sheila Polk, whose office prosecuted Jones, that hashish is legally different than other marijuana extracts now used to make edibles.

In both cases, he said, it’s a preparation.

“It started with the marijuana flower and ended up with hashish,” Humble said.

The issue of the state having given its blessing to the sale of edibles prepared from extracts eventually resulted in Attorney General Mark Brnovich, whose office normally would handle the appeal to the Supreme Court, backing out of trying to get the Supreme Court to uphold Jones’ conviction. Instead he has taken the position that the justices should review the issue to provide some guidance.

That left defending the conviction to Polk who wants the justices to uphold both the rulings of the trial court and the Court of Appeals.

Polk did not immediately return a call to her office for comment.

But Brnovich aide Ryan Anderson said his boss is happy the justices have agreed to take up the case and decide whether her prosecution of Jones was correct.

“There’s enough uncertainty as to whether or not extracts are covered by the Arizona Medical Marijuana Act,” he said. “Hopefully the Supreme Court can provide some clarity, not only for patients but for law enforcement moving forward.”

No date has been set for a hearing.

Hanging in the balance is what will be allowable going forward under the 2010 law that allows those with a doctor’s recommendation to purchase marijuana from state-regulated dispensaries. At last count there were nearly 184,000 Arizonans who qualify.

In upholding the conviction, appellate Judge Jon Thompson, writing for the majority, said the law allows patients to possess “all parts” of the cannabis plant, whether growing or not, and the seeds of the plant. That verbiage, he said, also immunizes medical use of any “mixture or preparation” of marijuana.

What the law does not include, Thompson wrote, is hashish.

But Judge Kenton Jones, in his dissent, said his colleagues were drawing distinctions where he said none were intended by those who crafted the law. And he said limiting the forms of marijuana that can be used for medical purposes undermines the whole purpose of the law: to help patients.

“Different forms or delivery methods of marijuana may be more or less appropriate, depending upon the patient’s age, condition, abilities, and desired dosage,” Jones wrote. “When considered in the context of medicinal use, there is no logical reason to limit how the therapeutic compounds found in marijuana are introduced into the body.”

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