Update: Status of Cannabis Concentrates in Arizona - Arizona v. Jones

Recently, the Arizona Supreme Court recently heard oral argument on the case of State of Arizona v. Rodney Christopher Jones, the case that currently will decide the future of the legality of Cannabis extracts in the Arizona medical marijuana market.

Specifically, this case relates to the issue of whether the definition in Arizona law of marijuana includes products that have resin extracted from Cannabis in them, or whether this definition only applies to the use of the whole plant only.

This case began in 2013 when Rodney Jones, who is a certified medical marijuana patient in Arizona, was arrested in Yavapai County. The arrest came from a traffic stop when the police officer found that Jones was in possession of less than a gram and a half of hashish. Then, Jones was taken to court in Yavapai County and convicted for possession of drugs and drug paraphernalia under Arizona's criminal code. It is important to note that Yavapai county is one county in Arizona where prosecutions for Cannabis related offenses are taken very seriously due to Yavapai County's county attorney Sheila Polk being an outspoken opponent to the Arizona medical marijuana program and Cannabis use generally. In fact, Ms. Polk has even made multiple statements against the use of Cannabis publicly, and recently compared medical marijuana to explosives in how dangerous she thinks it is. After his conviction, Jones then served two years in prison before he appealed the decision against him to the Arizona Court of Appeals. At the court of appeals, Jones lost where the court upheld his conviction and stated that resin extracted from Cannabis plants was not intended as a part of the Arizona Medical Marijuana Act when voters approved it in 2010.

During oral argument in front of the highest court that will hear this case, both sides heavily structures their arguments around two differing beliefs about what voters intended to include in the Arizona Medical Marijuana Act when it was passed at the ballot box in Arizona in 2010. Once both sides made their definitional arguments, they both then went on to describe various preparations methods of Cannabis and its extracts and the multiple methods of consumption for patients to be able to use medical marijuana.

In this case, Mr. Jones' position was argued by attorney Robert Mandel. When he went in front of the Supreme Court, Mr. Mandel put forward his client's view that the Arizona Medical Marijuana Act is designed to allow patients access to all parts of the Cannabis plant which are useful for medicinal uses, which includes things like Cannabis extracts and oils which can be used in food products, creams, sub-lingual drops, and as resin for vaporizer cartridges. This was in contrast to the position of the attorney representing Yavapai County, where Mr. Jones was originally pulled over in his vehicle and where he was then convicted and sentenced. The position of Yavapai County was that voters only ever intended the most strict definition of what Cannabis could be used by patients and therefore only the "flower" of the plant could be used as it is, basically meaning that it could only be smoked by patients.

The biggest issue with the strict definition proffered by the county, was that no Cannabis can actually be used by a patient unless the resin of the plant is heated to a certain temperature to allow the human body to use it as medicine said Mr. Mandel in his arguments. In contrast, just eating the Cannabis plant without first heating it, the human body cannot process and use the plant for any benefit.

For the sake of comparison, the definition of marijuana in the 2010 Arizona Medical Marijuana Act, as approved by voters, is "all parts of any plant of the genus cannabis whether growing or not, and the seeds of such plant" and the AMMA holds that the term usable marijuana is defined as "the dried flowers of the marijuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks and roots of the plant."

In the AMMA, there is a definition of usable marijuana for the sole purpose of determining the quantity of Cannabis that a card-holding patient can possess under their quota of 2.5 ounces twice a week. The definition of marijuana then is the definition that serves to describe what can be grown legally under the AMMA.

In contrast to the definitions in the AMMA, the current definition of marijuana in the Arizona criminal code divides out the leaves of the Cannabis plant, which is defined as marijuana and further separately defines any products extracted from the Cannabis plant, including resin, as Cannabis rather than marijuana.

Based on these two separate definitions of marijuana and Cannabis in the criminal code, the argument of the county in this case is that the AMMA does not protect any patients who possess any form of Cannabis extract from arrest or prosecution, and this is where the definitional debate comes into play in the Jones case.

When presented with Mr. Mandel's argument and various real life examples, multiple Supreme Court Justices seemed to not only understand this position, but also to likely be in conceptual agreement with Mr. Mandel's arguments. Other than the various comments made by some justices during the time for argument and the general nods of understanding and possible approval, it is still unknown which justices agree with which side's argument and therefore, it is still unknown how the entire Court will come out on this issue when the Justices hand down their decision.

During oral arguments in front of the Arizona Supreme Court, it seemed that multiple justices both understood Mandel's argument, and potentially agreed with it in principle. In a statement from the bench, Chief Justice Scott Bales stated that it would be irrational not to include resin in the AMMA because, not including resin would required thatpatients would need to seek the therapeutic effects of Cannabis in the least effective method.

It also seemed that other justices did not agree with the argument of Yavapai County where it claimed that the voters of Arizona knew that the criminal code had a specific definition of marijuana and one for Cannabis where what they passed at the ballot meant that the voters only intended to be able to consume Cannabis that was used dried up and to be smoked whole, rather than extracts. It seemed that multiple justices felt that there was no way of knowing what the voters intended when the AMMA was passed, like the county had claimed. In fact, a couple of the justices seemed to believe that there was really no way that the voters had intended to pass a law that would allow patients to use medicinal Cannabis, but at the same time to limit the methods that patients could use their medicine to help themselves.

The Jones case went up to the Arizona Supreme Court for argument after it had first been in the trial court and then went to the court of appeals with little real conversation about the actual definitional differences in the law, as well as the real implications for patients not to be able to use their medicine other than by smoking the dried flower of the Cannabis plant. After the case had been heard in these courts, it seemed that the Arizona Supreme Court was the first court to finally take into account, and understand the many issues related to this definitional disagreement for patients in real-life situations. Based on this, the hope now is that the justices will decide against Yavapai county on the argument that resin is not included within the AMMA as medical marijuana.

RG StaffApril 2, 2019