Judge: Medical-Marijuana Patients Can Sell Pot to Other Patients Because Law is Vague
Image: Susie Plascencia via Flickr
Arizona's medical-marijuana law is so vague, the state can't prosecute patients who sell pot to other patients, a Pima County Superior Court judge has ruled.
The offbeat July 2 ruling and dismissal of a criminal case by Judge Richard Fields has the potential to open up all sorts of entrepreneurial opportunities for Arizonans to sell marijuana legally -- if it survives an appeal.
The case began with the October 8, 2013, indictment of Jeremy Allen Matlock on three felony counts in connection with the sale and growing of marijuana. Matlock's public defender, Sarah Bullard, filed a motion to dismiss the case based on the premise that Matlock was immune from prosecution.
Bullard argued that Matlock, a registered cardholder who was approved for cultivation at the time of his indictment, never violated the voter-approved Arizona Medical Marijuana Act because the law allows patients to sell marijuana to other patients.
Although voters in 2010 approved a system of regulated dispensaries to sell marijuana, part of the Act's text that is now enshrined in Arizona Revised Statute 36-2811 states that "a registered qualifying patient or registered designated caregiver is not subject to arrest, prosecution or penalty in any manner" for various marijuana-related offenses.
Here's where it gets interesting: Those qualified Arizonans can't be prosecuted "for offering or providing marijuana to a registered qualifying patient or a registered designated caregiver for the registered qualifying patient's medical use or to a registered nonprofit medical marijuana dispensary if nothing of value is transferred in return and the person giving the marijuana does not knowingly cause the recipient to possess more than the allowable amount of marijuana."
That's a mouthful, especially with no commas. But without punctuation, Judge Fields notes in his ruling, (see below for full text), it can be interpreted in at least two different ways. The Pima County Attorney's Office reads it one way -- that patients and caregivers can't sell give their pot to anyone if something of value is transferred.
Bullard and her client wanted the clause read in a different way.
Read her way, the whole "nothing of value" part affects only those cases in which the patient sells to a dispensary.
Another clause in the law states, "Any cardholder who sells marijuana to a person who is not allowed to possess marijuana for medical purposes" will have his or her card revoked, implying that a cardholder who sells pot to a person who is allowed to possess it under the AMMA would not face revocation.
Arizona's "rule of lenity" requires that if a law has more than one interpretation, the one more lenient to the defendant must be applied.
Put it all together, Fields writes, and the law "necessarily implies that a qualifying patient can sell marijuana."
The state may have an additional hurdle to obtain a conviction under these interpretations, because "in order to violate the statute, one must BOTH transfer marijuana for something of value, AND knowingly cause the recipient to receive more than the allowable amount. In this case, the Defendant did not transfer more than the allowable amount -- there is no way to meet the knowing element."
In a bizarre reference to the musical group ABBA, Fields jokes that, "Ultimately, the acronym (AMMA) is so close strikingly similar to the name of a particular overly-sweetened Swedish pop band that the AMMA truly deserves to be analyzed as a penal statute."
Fields concludes the four-page ruling by stating that the law "is very poorly drafted and needs a lot of work. This Court finds that the statute is ambiguous, does not give a person of ordinary intelligence notice as to how it can be violated, and therefore the indictment is insufficient as a matter of law."
He dismissed Matlock's entire criminal case.
Whether patient-to-patient sales of marijuana are legal in Arizona has been debated since voters approved the law. Various views on ARS 36-2811 have been used by operators of so-called "compassion clubs" to justify the transfer of marijuana to patients. The clubs began popping up around the state in 2011 after Governor Jan Brewer halted, for a time, the legal dispensary industry.
State Attorney General Tom Horne filed a civil lawsuit in August of 2011, asking a judge for an injunction to shut down several clubs named in his complaint based on the idea that they were transferring pot for something "of value." Maricopa County Superior Court Judge Dean Fink refused to issue the injunction. Horne withdrew his civil case when the clubs, under threat of prosecution in simultaneous criminal cases, agreed to stop operating. The judicial branch, in other words, still has not decided whether patient-to-patient sales are legal.
Fields' ruling shouldn't cause anyone to rush out and start a compassion club or patient-to-patient sales business, because penalties could include serious prison time if the defense doesn't work out following a police raid.
However, the ruling gives hope to people like Billy Hayes, the former operator of the Cannabis Spot Vapor Lounge, who's fighting charges of selling marijuana with the help of lawyer Tom Dean.
Kellie Johnson, chief criminal deputy for Pima County Attorney Barbara LaWall, tells the Phoenix New Times that her agency is preparing to challenge Fields' ruling in the Arizona Court of Appeals.
"What he's really saying is the statute's vague," Johnson says. "This is (only) one judge that found this way."
She acknowledges that the ruling is "significant" in terms of determining whether patient-to-patient sales are legal.
Indeed, should Matlock prevail at the state Court of Appeals, (assuming Pima County moves ahead with an appeal), or state Supreme Court, Arizona's legal dispensaries could face competition.
Patients who live in areas that are 25 miles or more from a legal dispensary can legally grow up to 12 pot plants under the AMMA. Registered caregivers in those areas can grow a maximum of 12 plants for each of five patients, plus another 12 if the caregiver is also a registered patient. Those growers could, in theory, sell their harvest directly to patients, without regulation or the need to invest a fortune for a shop. Even within the 25-mile zones, some of the state's 50,000-or-so patients could make a few extra bucks by obtaining the statutory maximum of 2.5 ounces every two weeks and selling what they don't use to other patients.
Will Humble, director of the state Department of Health Services, says that patient-to-patient sales was not what voters intended.
Fields' ruling, should it be applied statewide, "basically opens the door for every patient who has a source in Mexico or wherever to start selling to other patients," he says. "Voters.. expected a dispensary system."
Noting that the law passed narrowly in 2010, Humble says many voters would likely have been "scared off" by the prospect of patients selling marijuana without regulation.
He could be right. But the law did pass, "ambiguous" wording and all. Now it'll be up to the judiciary branch to tell Arizonans just how far it goes.
Got a tip? Send it to: Ray Stern.
Get the Marijuana Newsletter
Stay informed of the latest marijuana news and views with updates about dispensaries, strains, products, changes to the law, and special offers in your area.