Montgomery Seeks Felony Conviction for Pot Patient Caught With Gram of Weed in Dorm
The Maricopa County Attorney's Office is prosecuting a college student with a medical-marijuana card for felony possession of less than a gram of weed.
Andre Lee Juwaun Maestas, a 19-year-old Arizona State University student, could end up with a felony on his record, probation and stiff fines because of the March discovery of about .6 grams of marijuana and some smoking paraphernalia in his dorm room.
On the other hand, the case could also end up in Maestas' favor -- a scenario which could have the added effect of overturning a 2012 law that prohibits patients from possessing medical marijuana on college campuses.
Tom Dean, Maestas' lawyer, has filed a motion to dismiss the case based on the idea that the 2012 law was an illegal addition to the voter-authorized act. It appears to be the first major challenge to the 2012 campus-ban law, which passed with bipartisan support and a three-fourths majority.
The 1998 Voter Protection Act requires a three-fourths majority to make changes to voter-approved laws. Yet as Dean emphasizes in his motion, no change can be made at all unless it "furthers the purpose" of a voter-approved law -- and he says the 2012 amendment to the Arizona Medical Marijuana Act (AMMA) does not do that.
The case began when ASU police arrested Maestas on suspicion of obstructing a roadway and only began investigating him for pot possession after they found his state-issued certification card in his wallet.
Maestas doesn't have a great explanation for why he sat down in the intersection of Forest Avenue and Lemon Street just past midnight on March 18, causing a police officer to contact him. He tells New Times he'd been staying up watching TV in a friend's dorm room, then went to his own dorm room at Best Hall to get a few things. On his way back to his friend's place, he decided to sit down for a minute to look through his things, he says.
ASU Police Officer Mark Janda drove up to Maestas and told the student he was creating a dangerous situation.
"He acted like it was a large deal," Maestas says. "I asked if I was being detained. He laughed and said, 'Of course you're being detained.'"
A second officer showed up. For reasons that weren't clear in court records, and which Maestas could not explain, Maestas was arrested instead of simply receiving a ticket.
He was put in the back of the squad car, where he overheard the officers discussing whether Maestas might be "on something."
Maestas says Janda demanded his wallet, began going through it, and found the state-issued pot card. The officers took Maestas to ASU police headquarters and detained him for the next several hours.
New Times could not confirm exactly when Janda searched the wallet. Maestas says it was at the scene. Prosecutors say it was after he was transported to a holding cell. ASU has not released the police report, and the booking sheet that Janda authored says only that the search of the wallet was performed in conjunction with the arrest.
What's clear, though, is that ASU police consider the discovery of a medical-marijuana card to be potential evidence of illegal marijuana possession, and they'll act accordingly.
In this case, finding the card resulted in an interrogation for Maestas.
"They were basically grilling me for a while" at the station, Maestas says. "They kept asking me how much marijuana I had in my dorm room."
Maestas says he never "meant" to say he had pot in the room, but he apparently did. The cops used his comments to draw up a search warrant that was soon signed by a judge.
The search of Maestas' Best hall dorm room turned up the half-gram of weed, a grinder, three pipes and some containers with marijuana residue in them, according to the booking sheet, records show.
The student was finally released at about six in the morning. Three months later he received a letter notifying him that prosecutors had charged with a misdemeanor for the road violation and a felony for the marijuana. In September, the County Attorney's Office submitted the case to a grand jury, which returned a superseding indictment for the same two counts.
Maestas is taking a risk and fighting the charges.
In the motion to dismiss, filed on October 7, Dean argues on behalf of his client that Maestras was "within his rights" under the state's medical-cannabis law and should be "immune from prosecution and penalty."
The AMMA allows qualified patients to possess up to 2.5 ounces of marijuana almost anywhere, but made a few narrow exceptions. Patients can't possess pot on a school bus, on the campuses of preschools, primary and secondary schools, and in any correctional facility.
Then came the 2012 law, which expanded the restrictions to include college campuses. But that was unconstitutional "legislative tampering" under the 1998 Voter Protection Act, Dean argues. As Dean notes, the AMMA states that the law's purpose is to "protect patients... from arrest and prosecution, criminal and other penalties..."
It's "obvious," Dean claims in the motion, that amending the law to prohibit adult patients from possessing their medicine on college campuses does not further that purpose.
Maestas (right) at an ASU Students for Sensible Drug Policy event in April, a few weeks after his arrest.
"The instructions given to the grand jury in this case and the statutory basis for the indictment ... directly violated" the AMMA, and therefore is in violation of the Voter Protection Act, the motion states. "The Grand Jury was instructed to follow a bad law."
A reply to the motion filed on October 17 by the County Attorney's Office states several times that the 2012 restriction was "reasonable." But it fails to support that notion very strongly.
McCarthy, in his reply, suggests that the ban on medical marijuana on primary and secondary-school campuses shows voter intent to protect "areas where young people gather for education... In certain locations, the importance of promoting a marijuana-free environment trumps the qualifying patient's license to use or possess marijuana."
The 2012 ban "simply adds" colleges to the type of campuses on which marijuana is prohibited, the prosecuting attorney goes on to say, and that's why it "furthers" the idea that "educational facilities are in special need of protection from the possession or use of marijuana."
We're reminded here of this week's ruling by the state Court of Appeals about medical-marijuana patients and driving. The court, in a 3-0 opinion, stated that patients could be prosecuted for a DUI under state law if their blood contains marijuana or its metabolites, even though the AMMA states that shouldn't happen.
According to the state Court of Appeals, the wording in the medical-marijuana law is not specific enough to make patients driving with THC in their bloodstreams immune from prosecution, even if they show zero signs of impairment. And that's even though the AMMA states that patients shouldn't receive a DUI "solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment."
"In the absence of such specific wording, we will not presume the electorate intended otherwise," the appeals court judges wrote in their ruling.
McCarthy and the County Attorney's Office now want to argue that in the absence of specific wording in the AMMA to ban medical-pot from college campuses, it should be presumed that the electorate intended such a ban, but it seems as though that argument wouldn't fly at the state Court of Appeals.
Dean's motion doesn't even get into one of the troubling side-effects from the 2012 ban: It also barred medical marijuana on college campuses even for research purposes. Lawmakers fixed that problem with an amendment in 2013, but not before it stalled Dr. Sue Sisley's highly anticipated study on PTSD and marijuana.
Another interesting aspect to the Maestas case is that County Attorney Bill Montgomery is proceeding with a felony marijuana prosecution when low-level possession cases are typically not prosecuted as felonies. The draconian charge is Exhibit No. 1 in the need to reform Arizona's marijuana laws: Under Arizona's tough-on-pot law, even a single seed can be charged as a felony.
Meanwhile, one state over, in Colorado, adults enjoy the freedom to purchase marijuana products at state-approved retail shops.
Jerry Cobb, Montgomery's spokesman, tells New Times that "most simple MJ possession cases are dismissed ... if a defendant accepts a diversion offer and successfully completes a drug treatment program. (Maestas) chose to reject the offer."
Maestas rejected the offer because he believes the AMMA provides him with immunity from prosecution. He uses marijuana to help alleviate pain from a displaced vertebrae, he says.
Even if he loses, jail or prison time isn't a possibility for him as a first-time offender. Arizona's first medical-marijuana law, passed by voters in 1996, makes it illegal for the state to sentence first- and second-time non-violent drug offenders to jail or prison.
But if he wins the case, he knows it will help other ASU students he knows who are medical-marijuana patients.
"My mom is very supportive of me," Maestas says. "I'm glad that something that happened to me could have such a good impact to others."
UPDATE: ASU released the police report on Thursday. It indicates that the officer, after spotting Maestas sitting in the roadway, believed the student was speaking too slowly, "appeared dazed" and had a "white film on the sides of his mouth." He handcuffed Maestas and searched the wallet, found the pot card, then took the suspect to headquarters and questioned him.
Maestas allegedly admitted he "may have" smoked marijuana the previous evening, and that he had a small amount at his dorm. When asked if he'd heard about Arizona Revised Statute 15-108(a), the 2012 law that makes it illegal to possess medical marijuana on a college campus, Maestas said he hadn't, adding that he thought the law only specified a ban on pot at secondary schools.
After Maestas refused to consent to a search of his dorm, ASU police got the search warrant signed by Superior Court Commissioner Charles D'Onofrio III.
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