Medical marijuana to include extracts and resins, Arizona Supreme Court rules

Dillon Rosenblatt//May 28, 2019

Medical marijuana to include extracts and resins, Arizona Supreme Court rules

Dillon Rosenblatt//May 28, 2019

Illustration of pot blondies with marijuana leaves surrounding the tray of edibles.
Illustration of marijuana edibles with marijuana leaves surrounding the tray.

Marijuana extracts and resin are legal to possess and use under the Arizona Medical Marijuana Act, the Arizona Supreme Court ruled unanimously on Tuesday, reversing a lower court’s decision.

The case, State of Arizona v. Rodney Christopher Jones, stems from a 2013 arrest in which Rodney Jones, a cardholder, possessed a thimble-sized amount of hashish. Jones, 27, served 30 months in jail. The ruling voids Jones’ conviction and sentence and means people who hold medical marijuana cards can legally use marijuana-laced products such as gummy bears, tinctures, extracts, candies and resins of the plant.

“We hold that the definition of marijuana in [statute] includes resin, and by extension hashish, and that immunizes the use of such marijuana consistent with AMMA,” wrote Vice Chief Justice Robert Brutinel, who authored the opinion on behalf of the court.

The oral arguments held on March 19 came down to what “usable” marijuana is defined as. The court ruled that it declines to adopt an interpretation of marijuana that presents contradictory definitions, and allows dispensaries to sell all parts of the plant.

In the ruling, justices declared that AMMA defines cannabis as “all parts of the plant.”

“The word ‘all,’ one of the most comprehensive words in the English language, means exactly that,” Brutinel said.

He wrote that it is “implausible that voters intended to allow patients” who rely on alternative forms of consumption to only smoke marijuana.

The ruling also states that edibles, extracts, vape pens and other forms of concentrates will be covered under AMMA, but only within the legal limit of 2.5 ounces.

Yavapai County Attorney Sheila Polk, a staunch opponent of medical marijuana, didn’t take the news that extracts are now legal well.

“The Court’s conclusion that the Arizona Medical Marijuana Act protects hashish (legally termed cannabis) is akin to finding that explosives produced from fertilizer are protected by laws allowing the sale of farm products,” she said in a press release.

Polk has problems with “high-potency drugs” being used as medicine and said the potency in edibles compared to the flower is similar to the differences between Advil and morphine. “It’s why the Arizona Court of Appeals found that hashish is susceptible to serious and extensive abuse,” she said.

Last year, the Court of Appeals ruled in a 2-1 decision that extracts were not covered by AMMA, saying the law voters passed in 2010 only covered for the marijuana flower.

As the case made its way to the Supreme Court, Arizona Attorney General Mark Brnovich pulled out of representing the state, thus putting it in the hands of Polk.

Ryan Anderson, spokesperson for Brnovich, said at the time,  “The last thing Mark Brnovich wants to do is stand in the way of patients getting legitimate medicine.”

The Yavapai County Attorney’s Office stumbled in its oral arguments in March resulting in an immediate halt on prosecuting patients for possession of extracts in Yavapai County.

Bill Hughes, the chief criminal deputy in the Yavapai County Attorney’s Office told Capitol Times in a March 26 email the office would hold off on filing charges in cannabis cases with a few exceptions until the Supreme Court rules.

Several other county attorneys either already halted prosecution or claimed they would wait for the court’s decision, including Maricopa, Pinal and Navajo counties.

American Civil Liberties Union of Arizona attorney Jared Keenan, said the court got the decision right. “It means qualifying patients will no longer have to fear prosecution for using medicine in the form helpful to them,” Keenan said, adding that it’s a shame that Polk was able to undermine the will of the voters for this long.

Keenan noted this was the second time the Supreme Court shot down Polk’s interpretation of the law.

The state’s highest court previously ruled in a 5-0 decision that Polk was no longer able to issue a special “marijuana provision” as she did in the 2015 case State v. Hancock, where a marijuana patient pled guilty to a DUI charge and Polk tacked on as a condition of probation that Jennifer Ferrell would not use marijuana in any form even though she had a state-issued card.  

Keenan said that the governor and Legislature should maybe be more reticent to listen to prosecutors since their interpretations of the law keep getting overruled by the courts.

The courts also shot down attempts by Maricopa County Attorney Bill Montgomery to prosecute medical marijuana users with extracts, as have courts in Navajo County.

“Hopefully that’s something lawmakers and the governor should start paying attention to and taking what prosecutors are telling them with a grain of salt,” Keenan said.