An Arizona State University student and qualified patient under Arizona's medical-marijuana law has been found guilty of possessing marijuana under a disputed law that altered the state's voter-approved Medical Marijuana Act by banning the plant from the campuses of public colleges.
The 2010 law already had prohibited possession even by qualified patients on K-12 campuses, but Arizona lawmakers — with the support of colleges — expanded the ban in 2012.
Andre Maestas, now 20, was busted after he sat down randomly in the intersection of Forest Avenue and Lemon Street just past midnight on March 18. While investigating him for blocking a roadway, campus police searched his wallet and found his medical-marijuana card. That led to a raid of his dorm room and the discovery of .6 grams of marijuana and some smoking paraphernalia. He says he uses marijuana for pain from a displaced vertebrae.
Despite his valid medical-marijuana card, police booked him on suspicion of marijuana possession. He teamed up with activist lawyer Tom Dean to fight the charge on the basis that the Legislature's 2012 change was illegal under the 1998 Voter Protection Act. (Ironically, the latter act was enacted by voters enraged after the Legislature decimated a medical-marijuana law approved overwhelmingly by voters two years earlier.)
Maricopa County Attorney Bill Montgomery, a prohibitionist politician who has fought to overturn the state's 2010 pot law, filed a felony marijuana-possession charge against Maestas after the student rejected the offer of a deferred-prosecution deal that would have eliminated Maestas' chance to challenge the law. A grand jury later filed superseding charges of felony possession and a misdemeanor for obstruction of a public thoroughfare.
Challenging the new state law was a bold move for Maestas, who faced the possibility of losing his student aid and expulsion if convicted of a felony. But in July, the state moved to lower the pot charge to a misdemeanor. Maestas was relieved and kept fighting. Instead of a jury trial, a bench trial was scheduled before Superior Court Judge Dean Fink. On September 4, Fink ruled that Maestas was guilty on the pot and obstruction charges. He set a sentencing date for this week, but that's now been moved to October 13.
Maestas, a first-time offender, is unlikely to serve jail time on the obstruction charge when he's sentenced, and the aforementioned 1996 law prohibits jailing first- or second-time nonviolent drug offenders.
Being convicted of a misdemeanor rather than a felony is "a weight off my shoulders," Maestas tells New Times. "It lets me keep going to school."
It also allows him to appeal the criminal conviction as if it were a felony. So his case could still result in an appellate ruling that strikes down the Legislature's 2012 ban on medical pot on public college property. The battle so far has been uphill. Besides the recent finding of guilt despite Maestas' valid medical-marijuana card, the Arizona Supreme Court declined the student's petition for a special action in the case in June.
Fink agreed with the position of the county prosecutor's office that the 2012 law did indeed prohibit the possession of marijuana at ASU, but didn't elaborate on why, Maestas says. Dean was unavailable for comment.
Asked if Montgomery had lost his zeal for going through with a felony prosecution against a student who probably would receive national attention, the county attorney's spokesman, Jerry Cobb, says that's not the case. He says the office "routinely" designates marijuana-possession cases as misdemeanors and requests bench trials when defendants have no prior felony convictions.
"We simply treated Mr. Maestas the same way we treat everyone else in his position," Cobb says.
Keep Phoenix New Times Free... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we would like to keep it that way. Offering our readers free access to incisive coverage of local news, food and culture. Producing stories on everything from political scandals to the hottest new bands, with gutsy reporting, stylish writing, and staffers who've won everything from the Society of Professional Journalists' Sigma Delta Chi feature-writing award to the Casey Medal for Meritorious Journalism. But with local journalism's existence under siege and advertising revenue setbacks having a larger impact, it is important now more than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" membership program, allowing us to keep covering Phoenix with no paywalls.