Bill Montgomery Is Prosecuting a Medical-Pot Patient for One Piece of THC-Infused Candy

New Times Photo Illustration

Medical-marijuana users were warned. And now Maricopa County Attorney Bill Montgomery is carrying out his plan to harass qualified medical users for resin-infused edibles.

Montgomery repeatedly has refused to say whether he is prosecuting patients for possession of marijuana concentrates who otherwise are acting within the boundaries of the 2010 Arizona Medical Marijuana Act.

New Times has learned that his office is moving forward with at least one such case, a felony prosecution of a medical-marijuana patient for possession of a single piece of infused candy.

The patient, a Phoenix resident who asked not to be named out of fear it would affect his employment, provided New Times with a letter from the County Attorney's Office saying it intended to prosecute him and a copy of his valid medical-marijuana card. Court records show he is scheduled to appear in court in mid-November to face one felony "narcotic violation" charge.

As mentioned in New Times' October 10 cover story, "Half Baked," the issue of marijuana "edibles" and extracts was brought into sharp focus this summer because of a warning by the Arizona Department of Health Services about the questionable legal status of concentrates such as hashish, kief, hash oil, and cannabutter.

Montgomery and several other county prosecutors in Arizona theorize that the voter-approved Medical Marijuana Act did not legalize extracts for qualified users to possess or for dispensaries to sell.

Because of the threat of prosecution, Jennifer and Jacob Welton, a Mesa couple, cannot give their 5-year-old epileptic son the medicine he needs — oil infused with a marijuana strain rich in cannabidiol, which doesn't produce psychoactive effects like the better-known component of the plant, THC.

Last week, the American Civil Liberties Union filed a lawsuit in Maricopa County Superior Court on behalf of the Weltons asking a judge to declare that extracts are protected under the medical-pot law and to prevent Montgomery from taking legal action based on his theory that extracted resin is an illegal "narcotic."

The debate hinges on the fact that the 2010 law makes "usable marijuana" legal for medical users and dispensaries, and that's defined as "the dried flowers of the marijuana plant and any mixture or preparation thereof."

Yet Arizona statutes also contain a decades-old unscientific definition of something called "cannabis," which is defined as "the resin extracted from any part of the plant . . . and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or its resin."

The piece of soft candy found in the Phoenix man's car on the night of December 20 was infused with resin extracted from a "preparation" of buds. Its active ingredient was THC, the same as in the buds used to make the candy.

As the man explained to New Times, he uses marijuana for back pain but can't smoke because of previous lung surgery. He's had two cases of spontaneous pneumothorax (collapsed lungs) in the past few years. The condition isn't related to smoking, he says — he's never been a cigarette smoker and previously smoked pot only occasionally. During his last surgery in June 2011, doctors "snipped off a piece of lung" during a procedure known as a mechanical pleurodesis, in which the outside of the lung is attached to the inside of the lung cavity. Chances of another collapse since the surgery are "really low," he says, but as a qualified medical-marijuana user, he'd prefer to ingest the plant.

His back pain? The 30-year-old says he has compressed vertebrae from an old injury. New Times wasn't privy to his medical records, but he did provide a copy of his medical-marijuana card — issued October 31, 2012 and expired November 1, 2013. This covers the time of his December 20 arrest for DUI by a Mesa police officer in Scottsdale.

According to a Mesa police report, the man said he drank one 22-ounce Blue Moon while at now-closed Saddle Ranch Chop House.

The officer pulled him over at 11:30 p.m. for making two wide right turns near the restaurant, then said he smelled pot in the car and liquor on the driver's breath. A blood test showed the medical-marijuana patient had a .056 blood-alcohol content — he ended up paying a fine for impaired driving. The crime lab apparently didn't test for the presence of pot metabolites, the report shows.

During a search of the man's Ford Mustang, the officer found a "marijuana pipe and a piece of cannabis candy in the center console," the report says. The items were seized. Possession of the pipe, ostensibly as paraphernalia for the use of medical-marijuana, was protected by his state-approved patient status. But not the candy.

The man says he bought the Tootsie Roll-like candy at a compassion club. Since then, his public defender has told him that a crime lab determined it contained no "usable marijuana," only the resin of marijuana — what state law defines confusingly as "cannabis."

Deputy County Attorney Sean Kelly sent the man a letter in July informing him that he had two options: potential conviction of a felony, for which he could receive up to 3.75 years in prison or a drug diversion program that would cost him more than $3,000.

Montgomery's office did not respond to a request for comment about the case.

The medical-pot cardholder plans to continue fighting prosecutors.

"I'm not going to be a victim," he says. "The new law is supposed to supersede old law."

Jennifer and Jacob Welton, it seems, are correct to worry about the legal risks of providing the wrong preparation of marijuana to their seizure-prone son.

As for the 41,765 Arizonans approved to legally use marijuana in Arizona as of October 2 — beware of extracts, at least in Maricopa County.

Other elected prosecutors around the state aren't taking as hard a line as Montgomery. Yet, anyway. Several state-approved medical-marijuana kitchens in counties other than Maricopa are using expensive botanical extractor machines to make edibles sold at legal dispensaries, and they haven't been raided by authorities.

Amelia Cramer, chief deputy for Pima County Attorney Barbara LaWall, told a reporter recently that patients could be prosecuted under the "narcotic" statute for something as innocuous as making tea from pot leaves. However, LaWall told New Times last month that she thought it would be a waste of time to send medical-marijuana edibles to the busy crime lab for testing.

The focus on a technical loophole in the medical-marijuana law by Montgomery, an up-and-coming socially conservative politician, can be viewed with justified cynicism. Creating marijuana-infused butter for brownies, oil, and tinctures (and even hashish, which is nothing more than purified, compressed plant material) is within the spirit of the 2010 law.

Montgomery has been fighting the law since voters passed it, claiming he's concerned about the conflict between state and federal statutes. He's appealing a pro-Prop 203 ruling by a trial court in a civil suit between a would-be Sun City dispensary and the county. The Arizona Court of Appeals is scheduled to hear oral argument on the case on November 27.

The ACLU's fresh lawsuit on the concentrates issue, though, probably won't be settled in time for the patient with the infused candy or for other patients who could be facing prosecution by Montgomery's office for "cannabis."

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