Future of Marijuana Extracts at Stake as AZ Supreme Court Ruling Expected Today

The Arizona Supreme Court is expected to rule on Tuesday on an important facet of medical marijuana law: Are resin extracts legal for medical marijuana patients?
Update, May 28, 2019: The Arizona Supreme Court's 7-0 ruling makes it legal for medical marijuana patients to use cannabis extracts.

The Arizona medical marijuana community and business industry will be watching carefully on this morning for a state Supreme Court ruling on the legality of cannabis resin extracts.

Parties in the case received word from the court on Friday to expect the ruling in State of Arizona v. Rodney Christopher Jones at about 10 a.m. on May 28.

A positive ruling for the industry means no change.

But if the high court rules that the voter-approved 2010 Arizona Medical Marijuana Act (AMMA) doesn't cover extracts, some of the most popular and medically efficacious products will be taken from dispensary shelves and relegated to felony status. Vape-pen cartridges, concentrates like shatter and wax, infused food and drinks, patches, tinctures, and topicals will be among the products banned, causing dispensaries to lose a critical amount of revenue and makers of those products to lose their jobs.

Patients and business owners were buoyed in March during oral arguments before a panel of Supreme Court members, perceiving some of the justices' questions to be favorable to their side. Indeed, a certain common-sense angle arises with the idea of banning concentrates. "It just seems crazy that the voters would say, we only want a 3-year-old to smoke a joint," said Jared Keenan of the Arizona Civil Liberties Union of Arizona.

Still, the ruling could go either way.

Just over 200,000 people were participating in the state's medical marijuana program as of April, served by about 130 dispensaries.

The Jones case began on March 1, 2013, when police in Yavapai County responding to a noise complaint encountered Jones, searched him, and found 1.4 grams of hashish in a jar in his backpack. Jones presented his valid medical marijuana card, but cops arrested him anyway, and the Yavapai County Attorney's Office charged him with possession of narcotics.

click to enlarge The March state Supreme Court hearing included a lively discussion of pot brownies. - ARIZONA SUPREME COURT
The March state Supreme Court hearing included a lively discussion of pot brownies.
Arizona Supreme Court
Already on probation for a 2012 conviction for "attempted involving a minor in a drug offense (marijuana)," Jones was sentenced in 2014 to 2.5 years for possession of the hashish, possession of paraphernalia, and a violation of probation in the 2012 case, court records show.

His lawyer, Craig Williams, had filed a motion to dismiss the case based on Jones' patient status. But Yavapai County Attorney Sheila Polk filed a counter-motion, arguing that the AMMA had not legalized hashish.

Voters narrowly passed the medical marijuana law in 2010, giving Arizonans who suffer from certain ailments the right to use marijuana without fear of prosecution, and giving businesses the opportunity to obtain licenses to grow and sell marijuana.

Not long after the law went into effect, though, Maricopa County Attorney Bill Montgomery and Polk, his counterpart in Yavapai County, took the position that the law didn't cover the THC-bearing resin that can be extracted from marijuana and consumed independently, often in food, drinks, or vaporizers.

Decades-old Arizona law defines marijuana and extracted resin separately in state statute, with the latter unscientifically termed as a "narcotic" called "cannabis." While all marijuana is a felony in Arizona for non-patients, people who possess cannabis resin and products containing it are subject to a more-serious felony prosecution with greater penalties.

The medical marijuana law doesn't specifically exclude patients from prosecution in resin cases, which created a loophole exploited by Montgomery and Polk. They decided that if a patient was in possession of cannabis resin, the medical marijuana law protections didn't apply.

Yet the 2010 law does seem to cover extracts by defining marijuana as "the dried flowers of the marijuana plant, and any mixture or preparation thereof."

Maricopa County Superior Court Judge Katherine Cooper pointed out as much in March 2014, ruling against Montgomery's position, which had been challenged by the parents of an epileptic child. But the ruling didn't apply statewide. Jones was indicted the next month.

Jones' appeal continued while he was in prison. He was released in mid-2017. In June 2018, the Arizona Court of Appeals finally issued its long-awaited ruling in Jones' appeal: In a 2-1 decision, the court ruled to uphold Jones' conviction. Cannabis concentrates were not legal in Arizona, even for medical marijuana patients. Jones' new lawyer, Robert Mandel, appealed to the state Supreme Court.

Gary Smith, who heads up the Arizona Cannabis Bar Association, declined to predict which way Tuesday's ruling would go, but noted that it would have an impact either way.

"It would be fantastic for patients and patient rights ... and the will of the voters" if the court rules in favor of cannabis extracts, he said.

"Poor Rodney already served his time," he added. "Nobody is going to be able to give Rodney two years of his life back."