But Medical Marijuana Card Holders Not without Risk
Almost three years after passage, Medical marijuana remains controversial in Arizona. Medical Marijuana was legalized in 2010 through voter passage of the Arizona Medical Marijuana Act (AMMA). The purpose of the AMMA is to protect patients with debilitating medical conditions, so that they can obtain necessary relief.
AMMA allows patients to get a registration identification card to show law enforcement officers that they are permitted to use marijuana for medicinal purposes. Visitors from another state that recognizes medical marijuana, like California, with equivalent cards are also protected.
Notwithstanding these state protections, some law enforcement officers refuse to recognize the card. Federal law, which trumps state law, does not recognize or permit a medicinal use for marijuana. An appellate case heard earlier this year further legitimized medical marijuana cards, but the facts of the case illustrate that it there are still risks from a legal perspective to be a medical marijuana user in Arizona.
In the case, a California driver (the defendant) was stopped when she entered Arizona. The authorities found and seized marijuana and other contraband. The State filed drug charges against the driver, dismissing them only after she produced proof of permission to use marijuana for medical purposes. The Superior Court ordered that the driver’s marijuana be returned.
The State appealed. It argued that the superior court could not order the sheriff to return the marijuana and that Arizona law not only requires “summary forfeiture” of any marijuana seized by law enforcement, but the sheriff could not return the driver’s marijuana or risk violating federal law and getting prosecuted.
The appellate court reasoned that law enforcement officers did not seize the marijuana in connection with a drug offense, since the driver was permitted to possess marijuana for medical purposes. Nor could the State win on the grounds that it could keep marijuana that came into its possession. This was because to do that would require either bringing civil forfeiture proceedings, or to be holding drugs possessed in a crime. Since AMMA decriminalized medical marijuana, the latter situation did not exist.
The State also argues that the AMMA did not expressly require them to return marijuana from a qualifying patient. The appellate court disagreed. It noted that no penalty could be placed on a qualified patient under the statute.
The State had also argued that the sheriff could be prosecuted for transferring marijuana under federal law. This, too, the appellate court repudiated. Federal law “immunizes” law enforcement officials who follow a court order.
The State’s final argument was that the superior court could not order that the driver’s marijuana be returned to her because her possession was a federal crime. The appellate court declined to decide whether federal law preempted AMMA for purposes of adjudicating this case. There was no actual or threatened prosecution of the driver under federal law, and the State was not a party with a personal stake who had standing to argue that federal law prevented the driver from possessing the marijuana. Accordingly, the appellate court affirmed the ruling of the superior court.
It’s clear that this will not be the last time a defendant will have to deal with a situation in which state law enforcement attempt to ignore AMMA. Officers may continue to arrest drivers, requiring them to come to court to fight the charges brought against them.
• Arizona Court of Appeals Division 1
• Arizona Drugs Defined Under Criminal Code
Medical marijuana may be further complicated when officers arrest drivers who test positive for marijuana use on the grounds that they are driving under the influence of drugs. For help defending your Phoenix AZ DUI or drug charges, contact the experienced Arizona criminal defense attorneys of the Law Offices of James Novak at 480-413-1499.
Arizona Court Rules Against Imposition of Non-concurrent Sentences, Phoenix DUI Lawyer Blog, May 17, 2013
Prescription Drug DUI Charges, Phoenix DUI Lawyer Blog, January 28, 2013