Montgomery Seeks Felony Conviction for Pot Patient Caught With Gram of Weed in Dorm

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See also: -Medical-Marijuana Patients Still at Risk for DUI Conviction, Appeals Court Confirms -Governor Brewer Signs College Ban on Medical Marijuana Into Law

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.

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Ray Stern has worked as a newspaper reporter in Arizona for more than two decades. He's won numerous awards for his reporting, including the Arizona Press Club's Don Bolles Award for Investigative Journalism.