Arizona Judge Changes Mind on Medical-Cannabis Extracts, but Legality Still Unclear
March 15, 2018
A Navajo County judge now agrees that Arizona medical-marijuana patients can legally possess cannabis products containing extracted resin, causing prosecutors to drop a felony narcotics charge against a Prescott man.
The March 6 ruling by Superior Court Judge Dale Nielson avoids a legal showdown in Arizona higher courts over the case that could have led to the banning of popular dispensary products like shatter, oil for vape cartridges, and THC-infused food and drinks.
But the decision only delays the day of reckoning in court over extracts for dispensaries and their customers. The legality of extracted resin products under the Arizona Medical Marijuana Act remains an open question.
The Navajo County case caused concern in the industry back in October, when Nielson made his ruling against extracts.
As Phoenix New Times pointed out at the time, the underlying issue was never fully addressed in a 2014 Maricopa County court case that found extracts to be legal.
Jacob Welton, a young boy who suffered frequent seizures until his death in 2015, had found relief from tinctures made with concentrated cannabis resin. He was allowed to continue using his medicine after the ruling by Judge Katherine Cooper.
Yet the AMMA's wording continues to be problematic, leaving legal openings for prohibitionist prosecutors like Maricopa County Attorney Bill Montgomery, who wanted people like Welton's parents charged with felonies.
The law includes a definition for marijuana and "any mixture or preparation thereof," but Arizona's decades-old criminal code created definitions for both marijuana and "cannabis."
The latter is defined as the resin extracted from marijuana plants. "Cannabis" is deemed a narcotic in state law and possession of it is punishable by a stiffer, Class Four felony charge than plain old marijuana, which is considered a Class Six felony.
It's an unscientific difference.
Cannabis and marijuana are the same thing, in botany. The cannabis plant's psychoactive effects come from THC, a compound found in resin globules contained mostly in the flowers, or buds, of the plant. That resin can be extracted in many ways, such as crushing the buds with ice, stripping away the plant material with a solvent like butane or carbon dioxide, or simply simmering some buds in butter.
The AMMA allows qualified patients to possess up to 2.5 ounces of marijuana. It defines "usable marijuana" 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 ..."
Judge Cooper, in her 2014 ruling, said the AMMA's definition clearly includes extracted resin.
In October, Judge Nielson disagreed with Cooper. But he's since changed his mind.
Nielson is the judge in the case of Jake Ruether, 26, a troubled young man from Prescott who was picked up during a traffic stop with cannabis products including dried buds, hash oil, five vape-pen cartridges, and 12 THC "wax dabs."
Prosecutors with the Navajo County Attorney's Office, who possibly were not familiar with the Cooper case, charged Ruether with possession of the narcotic "cannabis" for sale based on the way the products were packaged.
Ruether had a valid medical-marijuana card at the time of the stop, and said he bought the products at a local dispensary.
Ruether's attorney, Jon Saline, requested a hearing on the cannabis issue. Nielson listened to arguments from each side in early February, court records show.
Saline submitted an affidavit by Dr. Hope Jones, the chief scientific officer for C4 Labs, a cannabis-testing company, on behalf of Ruether and the AMMA.
"With few exceptions, dried marijuana flower is the raw material used to make concentrates," Jones wrote in the affidavit. The amount of resin "is very low on stem and leaf tissue compared to flower structures. As a result, cannabinoid concentration is very low in these tissues, and extraction of cannabinoids from leaf and stem tissue is usually prohibitively expensive to justify."
Jones wrote that she doesn't know of any producer of state-legal cannabis that prepares concentrates from anything other than cannabis flower: "Not the roots, stalks, stems or leaves. The flower."
Nielson wrote in his March 6 ruling that after reviewing state law and Jones' written testimony, he found that "the usable part of marijuana would include the extracts and concentrates which come from the marijuana flower ... The court therefore finds that cannabis, in this form, is included in the protection of the AMMA and vacates its ruling of October 5, 2017."
Prosecutors soon dropped the narcotics-for-sale charge against Ruether, who's still facing serious charges of
assault, disorderly conduct, and endangerment.
"I believe the judge took all the evidence presented ... and considered this issue in depth," Saline told New Times. "Our motion to reconsider provided the court with some of the biology and science behind how concentrates are made and used through the help of Dr. Hope Jones."
Saline noted that the Navajo County Attorney's Office could file a special action or motion to reconsider Nielson's ruling, but noted that the office didn't object to the admission of Jones' affidavit as evidence. Navajo County Attorney Brad Carlyon didn't return a message on Tuesday.
Nielson's ruling is a positive step for patients and dispensaries, but it does not settle the overarching matter of whether extracted cannabis resin is legal under the Arizona Medical Marijuana Act, said Gary Smith, founder and president of the Arizona Cannabis Bar Association.
The marijuana-oriented bar association learned recently that a similar case is already under consideration by the Arizona Court of Appeals, Smith said.
In that case, Rodney Christopher Jones, 26, was arrested in 2013 at the Prescott Resort and charged with possession of 1.43 grams of "cannabis, a narcotic drug," court records obtained by New Timesshow.
His lawyer, Craig Williams, filed a motion to dismiss the case in 2014 that was countered by the Yavapai County Attorney's Office, which is led by outspoken prohibitionist Sheila Polk.
The state agreed that Rodney Jones had a valid medical-marijuana card at the time of his arrest, but Polk's staff argued that the AMMA had not legalized "hashish."
A Yavapai judge pointed out after a 2015 evidentiary hearing that Cooper's ruling did not specifically address how state statute defined the narcotic "cannabis," and denied Jones' motion to dismiss.
Rodney Jones was convicted in Yavapai County Superior Court and served nearly a year in prison on the charge — for possessing a substance sold legally in dispensaries throughout the state. He was released in June 2017.
Williams filed an appeal in 2016 with the state Court of Appeals, hoping to get the conviction thrown out. Records show the appeal remains under advisement by the appeals court.
Williams said he could not comment without Jones' authorization, and didn't call back on Wednesday.
Smith, the pro-cannabis attorney, said that the rulings by Cooper and Nielson on extracts may or may not be good indicators for how the appeals court will rule.
He expects the court to rule on the Jones case sometime this summer.