Bill Montgomery has been stymied in two separate cases of medical-marijuana patients who possessed small amounts of concentrated marijuana.
Records show that the Republican county attorney will continue to try to saddle one of the valid patients with a felony conviction.
But before we tell you about the patient, we wanted to catch you up on a situation we wrote about in November, when another bona fide patient was caught in a DUI stop and found to be in possession of a single piece of infused candy.
The patient, whom New Times is not identifying at his request, had purchased the Tootsie Pop-like candy at a local "compassion club" that isn't approved by the state to sell marijuana.
Montgomery's office tried to use the case to advance the elected official's belief that voters did not authorize patients to use concentrated marijuana when they approved the state's medical-pot law in 2010.
A New Times cover story in October, "Half-Baked," explained the concentrates controversy in detail. What it comes down to is this: Although voters made marijuana legal for valid patients and apparently intended to include concentrates for medicated food and drink items, an older Arizona law defines "cannabis" separately as the resin extracted from marijuana. Because the 2010 law does not explicitly legalize marijuana resin, Montgomery -- a social conservative who opposes any kind of marijuana-law reform in Arizona -- has declared that concentrates still are illegal for patients.
Yet everything hinges on interpretation: The 2010 law states that patients can use marijuana buds "and any mixture or preparation thereof."
Concentrates like hash oil and cannabutter are, it would seem, preparations of marijuana in the same way that olive oil is a preparation of olives.
One ramification of Montgomery's interpretation of the law is that an East Valley 5-year-old, Zander Welton, can't get the medicine his parents say he needs to control his frequent seizures. With the help of the American Civil Liberties Union of Arizona, Welton's parents filed a lawsuit against Montgomery in October that aims to settle the concentrates issue. An evidentiary hearing is scheduled for next month in that case.
The man busted with the piece of infused candy had a valid medical-marijuana card when he was stopped, but Montgomery's office sent him a terse letter in July stating that he could either plead guilty and spend about $3,000 on a drug program, or take his chances with a felony conviction that could put him away for 3.75 years.
The patient chose to fight the case with the assistance of Arizona attorney Tom Dean.
In January, Montgomery's office dropped the charge unexpectedly, claiming that the evidence had been destroyed.
"I find it hard to believe that they happened to lose the evidence," Dean tells New Times. The state's theory on the medical-marijuana law and concentrates is so weak, he theorizes, that the state did not want the case adjudicated in the patient's favor, which would have jeopardized similar cases Montgomery might want to prosecute.
We talked recently to the patient, who asked not to be named because he was worried about his employers finding out, and of course he's pleased with the outcome -- though it does mean the wider issue still isn't settled.
However, a ruling by a Superior Court judge in a similar case last month could be one more indicator that Montgomery's interpretation of the law is too narrow-minded.
As in the other case, New Times isn't naming the defendant who got partially reamed by the county. We'll tell you, though, that while the Tootsie Roll defendant was an average citizen with no convictions on record, the second defendant has been in previous trouble. He's a convicted marijuana dealer who pleaded guilty to charges in 2008 that included misconduct with weapons. But he's also a card-holding medical-marijuana patient under Arizona law.
He and a woman were arrested on possession charges in February 2013, and the woman was convicted after a guilty plea. The county prosecutor's office dropped charges of possession and paraphernalia after the man's pot card proved valid. However, the county kept moving forward with a "narcotics" charge on the man because of an infused food item he'd had on him.
Following a hearing last month, Superior Court Judge Robert Gottsfield tossed the narcotics charge against the man because the law is "ambiguous."
The prosecutor's office "apparently conceded that the only medicinal value of marijuana when prepared as a food or drink is if the THC has just been extracted and concentrated," Judge Gottsfield wrote in the dismissal order. "This makes doubtful the state's argument that [legal] protection does not extend to the extracted resin which is cannabis."
That's not the end of the story, though.
About a week ago, Deputy Dounty Attorney Michelle Vaitkus filed a motion asking the judge to reconsider the dismissal. The prosecution had not conceded that no other method of making pot-infused food or drink items was possible, Vaitkus said.
"You get the same effect" by simply adding crushed-up buds to a food or drink, she claimed.
She's asked the judge for a hearing on the issue so the state can show the medicating value of marijuana can be obtained without the need to create "cannabis." We'll keep you posted on this one.
Vaitkus' argument, which has yet to be ruled on by Judge Gottsfield, has a couple of problems. One is that crushed-up pot isn't ideal for drinks, since people don't usually like a lot of solid matter in their liquids. The second problem is that Vaitkus is not totally accurate to say in her motion that whether you smoke marijuana or put it in food, "you get the same effect." Much more marijuana is needed to achieve a psychoactive effect when eating it than when smoking it. That's the main reason Arizona's law allows patients to buy as much as 2.5 ounces every two weeks.
At a recent news conference, Montgomery hinted that patients in possession of concentrates -- and state-approved dispensaries that may sell them -- probably are going to be fine as long as they are following the 2010 law.
However, Montgomery isn't ready to concede the Welton case or to make a new announcement that gives concentrates his blessing.
If you like this story, consider signing up for our email newsletters.
SHOW ME HOW
You have successfully signed up for your selected newsletter(s) - please keep an eye on your mailbox, we're movin' in!
Which means, like much else in this strange, new world of semi-legal marijuana, the final answer on concentrates in Arizona remains in a haze.
Got a tip? Send it to: Ray Stern.