After Court Ruling, Uncertianty Looms Over Arizona's Medical Marijuana Industry Part 2
Even as Rodney Jones was being sentenced to prison, the judge wasn’t quite sure what to make of his case.
“Again, Mr. Jones, like everyone else I don’t know what the answer is,” Yavapai County Superior Court Judge Tina R. Ainley told the young man who had been arrested on drug charges three years earlier.
Except that narcotic was a small amount of marijuana oil in a jar. And Rodney Jones had a medical marijuana card.
His lawyer would be appealing the decision and that “may end up being set aside,” the judge said. “I don’t know.”
Rodney Jones had picked up the cannabis oil at a state licensed dispensary.
“He was certainly acting, at least in his view, according to the rules,” said attorney Robert Mandel who is now appealing Jones’ case to the Arizona Supreme Court.
Rodney Jones was sentenced to 2 1/2 years for the narcotic and another year for the drug paraphernalia — the jar. The 26-year-old received credit for time already served and is out of prison. But he had stumbled upon a legal fight that could now upend the state’s medical marijuana industry: Do cannabis extracts — made from the plant’s resin — count as medical marijuana in Arizona?
In places like Yavapai County, some patients have discovered it does not.
Rodney Jones Not The Only Patient To Face Prosecution
“So you had possession of something that you had purchased at a dispensary?” Judge Glenn A. Savona asked a woman appearing in Prescott Justice Court earlier this year.
“With a valid medical marijuana card?”
“Yes,” she replied.
Police had pulled her over a few months earlier and found a vape pen with cannabis oil, according to courts records obtained by KJZZ.
She was pleading guilty to possession of drug paraphernalia, a misdemeanor.
Eventually the prosecutor interjects.
“The issue is that she had marijuana wax which is a narcotic drug and not covered by the Arizona Medical Marijuana Act,” he told the judge.
The judge asked if the dispensary was also being prosecuted.
“No,” she replied.
“I wouldn’t say that is exactly true. It is something that is ongoing at this time,” the prosecutor said.
He explained the woman had felony charges filed against her, but the Yavapai County Attorney’s Office is giving her the opportunity to plead guilty to a misdemeanor because of her nonexistent criminal history.
Eventually, she takes the plea.
An hour later, another man — also a medical marijuana card holder — is called up on the same charges.
“It was a wax container … wax I just bought from the clinic,” the man told the judge. “I was unaware that wax, you know, I don’t know.”
He later took the plea deal, too.
Ripple Effects Of A Ruling
Jared Keenan, a former public defender in Yavapai County, says these are not isolated events.
“They routinely go after qualifying patients who use marijuana extracts,” said Keenan who now works for the American Civil Liberties Union.
“Threatening people with serious felony charges for possessing something they purchased from a state licensed dispensary is really not the way the plea system is supposed to be working,” he said.
Keenan worries medical marijuana card holders facing prosecution for cannabis “wax” — what’s considered “hashish” under Arizona’s criminal code — could become a reality across the state.
In a 2-1 decision, the Arizona Court of Appeals recently upheld the conviction of Rodney Jones and raised the specter of thousands of patients facing a similar fate.
“Patients need to be really, really cautious,” Keenan says. “Theoretically, any patient using any form of marijuana other than the leafy flower that you smoke could be subject to felony charges.”
This crackdown isn’t happening yet in Maricopa County, according to the Maricopa County Attorney’s Office. It’s waiting to hear from the state’s high court “before initiating any prosecutions of these cases.”
Likewise, state health officials haven’t told dispensaries to stop carrying the products.
The Arizona Attorney General hasn’t publicly given law enforcement any new direction, either. But the ruling effectively opens the door to a policy that seemed like an outlier to many in the industry.
County Attorney Says The Law Is On Her Side
Keenan isn’t surprised the case began in this rural county — home to one of Arizona’s staunchest foes of marijuana, Yavapai County Attorney Sheila Polk.
“As a public defender, I used to joke with medical marijuana patients that they should probably just stay out of the county,” he said.
Polk and her advocacy group, Arizonans for Responsible Drug Policy, fought the legalization of recreational marijuana in Arizona two years ago.
She says her office has always prosecuted people for cannabis oil, which goes into many of the popular products sold at dispensaries like edibles and vape pens.
“I don’t know where the source of confusion would come,” Polk said. “We have a court of appeals decision, which is clear. There hasn't been a change here in how we do business.”
Polk’s argument against extracts hinges on the fact that Arizona’s voter-approved medical marijuana law doesn’t explicitly mention them. But the criminal code does, and it even assigns a harsher penalty for cannabis oil than marijuana flower.
Many lawyers in the medical marijuana industry strenuously disagree with this argument. So have some lower courts in other parts of the state. But Polk says this omission clearly indicates voters did not want these extracts when they passed medical marijuana in 2010.
“They weren’t contemplating that manufacturers would be extracting one chemical from that marijuana plant to make this mind-blowing product that is addictive,” she said.
Polk is specifically referring to products with high concentrations of THC, the psychoactive cannabinoid, but not the other compound, CBD, which is used to treat conditions like epilepsy or chronic pain.
She says it’s not clear those products are illegal for medical marijuana patients.
“There’s a deliberate muddying of the waters between CBD and THC in light of the Jones’ decision because that’s where you can get some public sympathy,” Polk said.
She says that recent ruling “only deals with THC” and compares it to the difference between morphine and heroin.
“That’s an example of how from the plant, you can extract something that can have medicinal use, but you can also extract something that is terribly destructive, which is the heroin.”
Polk says it’s her policy not to prosecute CBD cases.
“I am not aware of any prosecution in the state for CBD,” she said.
But the woman who appeared in Prescott Justice Court earlier this year told the judge she had CBD, according to the court record.
Polk told KJZZ she would look into the case.
Biologist Says Court Ignored Science
Plant biologist Hope Jones, who holds a doctorate in molecular and cellular biology and who is unrelated to Rodney Jones, says the concern about the potency of cannabis misses the whole point of medical marijuana.
“The point is to come up with something in a personalized way that works for us. And it might not be a baby aspirin. It might be an Advil,” she said.
Hope Jones is a consultant for cannabis growers in Arizona and runs a company called Emergent Cannabis Sciences.
She says the appeals court did not seem to distinguish between the different kinds of extracts, all of which come from the plant’s resin.
“There is no wording … that differentiates if their finding is specific to THC or CBD,” she said.
The court opinion stated that cannabis oil is “distinguishable from the green leafy substance commonly referred to as marijuana” and “widely recognized as ‘the resin extracted'” from the plant.
But Hope Jones said this characterization misunderstand the anatomy of the plant.
“The resin is a part of the flower. You don’t make resin by just separating something from the flower and processing resin,” she said.
That resin contains the plant’s active ingredients, which are sequestered in small crystals, called trichomes. Those structures are most densely clustered in the flower, but are found in much of the plant.
Manufacturers use chemical extraction to produce a concentrated form of cannabinoids. Think of how the food industry makes vanilla or saffron.
Hope Jones said the trichomes are being separated from the plant all the time, even when someone is simply handling marijuana flower.
“The trichomes are breaking and then the resin is getting out of the trichomes and sticking to your hands,” she said.
She says even smoking the flower is technically a form of mechanical extraction. So, by the court’s logic, whenever those trichomes are separated from the plant a narcotic is being made.
“It is impossible to go in and buy a flower that has not had any trichomes break off and be in that container,” she said.
After Hope Jones explained this to a judge in Navajo County, he ruled in favor of a patient who had been caught with cannabis oil. But this science did not come up in the appeals court ruling, which takes precedence.
Original Article by KJZZ