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Proposed law would sweep hashish under definition of marijuana

(Deposit Photos/Uros Poteko)

(Deposit Photos/Uros Poteko)

Rep. Tony Rivero wants to change state law to clarify that cannabis is marijuana and protected for medicinal use.

The Peoria Republican’s proposal in HB 2149 would remove the definition of cannabis from Arizona’s criminal code, and sweep that language into the definition of marijuana. That would ensure that cannabis extracts and concentrates, or hashish, are protected as marijuana under the Arizona Medical Marijuana Act.

That clarification would ensure that county prosecutors may no longer charge medical-marijuana cardholders in possession of concentrates with felony possession.

“[The new] definition conflicts with prior law that defines cannabis as criminal,” Rivero said. “The Marijuana Act supersedes the the criminal code and I don’t want it to be used as a tool to force patients who are fighting cancer and other diseases to have to smoke marijuana,” as opposed to using extracts or concentrates.

The measure would have a ripple effect even for those without a medical-marijuana card.

The current definition of cannabis falls under state statute for narcotics, meaning that simple possession of hashish could be prosecuted as a Class 4 felony. By moving the definition of cannabis under the definition of marijuana in criminal code, possession charges for those without a valid medical-marijuana card would be reduced to a Class 6 felony, according to Jared Keenan, a criminal justice attorney with the American Civil Liberties Union of Arizona.

“Even under the criminal code, we won’t have this weird difference between hashish and marijuana,” Keenan said.

Rivero’s proposal deals with an issue highlighted by an Arizona Supreme Court case on the legality of medical-marijuana concentrates.

The state Court of Appeals ruled in 2018 that those extracts or concentrates aren’t protected by the AMMA. The Supreme Court later chose to review that decision. The case stems from the conviction of a man in Yavapai County, who was prosecuted for possession of a small amount of hashish even though he was a medical-marijuana cardholder. Yavapai County Attorney Sheila Polk could not be reached for comment.

Keenan said the clarification proposed by Rivero shouldn’t be necessary.

“From our point of view, it shouldn’t have any impact” on the case, he said. “We are arguing that the current definition in the AMMA is broader than the criminal code, and this stuff is already protected.”

However, if justices uphold the Court of Appeals decision, Rivero’s bill would be vital: “Then this could have a big impact, because I think it would clarify that extracts, all of it, qualifies as marijuana,” Keenan said.

Kevin DeMenna, a lobbyist for the Arizona Dispensaries Association, said he appreciates that Rivero is trying to do the right thing for medical-marijuana patients, especially in light of the lawmakers’ past failures to act on marijuana issues legislatively.

But the ADA will remain neutral on the bill, and is focused instead on tweaking industry regulations, as well as another attempt to legalize marijuana for recreational use in 2020.

“This is not something the ADA has asked for,” DeMenna said.

Rivero, however, doesn’t think it’s too soon to act.

“As a citizen and a representative, I can no longer allow an old definition that contradicts what the voters [in 2010] wanted,” he said.

The AMMA passed by a razor-thin margin in 2010 with just 50.1 percent of the vote.

In 2016, the vote to legalize recreational marijuana, Proposition 205, failed by roughly 67,000 votes.

Rivero has advocated for criminal justice reform in the past. He was the vice chair of a disbanded ad hoc committee on reforms last summer, and continued to help lead those efforts behind the scenes in 2018.

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