The Arizona Supremes Right a Wrong: State v. Jones and the Arizona Medical Marijuana Act – “All” means All

A few months ago, I wrote about some good and bad case law concerning the Arizona appellate courts and the Arizona Medical Marijuana Act (“AMMA.”)  Well, there is no “ugly” to report (or bad) as this morning, the Arizona Supreme Court, in a unanimous decision, reversed the Yavapai County Superior Court’s denial of Mr. Rodney Jones’ Motion to Dismiss, vacated the Arizona Court of Appeals’ decision upholding Mr. Jones’ conviction for Possession of a Narcotic Drug (Cannabis) as well as Possession of Drug Paraphernalia (the jar the marijuana resin was found in), and vacated his underlying felony convictions for same.

For those needing a refresher on the Jones case’s procedural history and facts; here it is.  Back in 2013, Mr. Jones a registered qualifying patient under the AMMA and an Arizona medical marijuana cardholder, was found in possession of a jar containing 1.43 grams of cannabis.  Cannabis is defined in the Arizona criminal code as a narcotic drug, consisting of “[t]he resin extracted from any part of a plant of the genus cannabis, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or resin.”  A.R.S. § 13-4001(4)(a).  Possession of Narcotic Drugs is a Class 4 felony, punishable by a presumptive sentence of 2.5 years in the Arizona Department of Corrections, which is exactly the sentence Mr. Jones received in the Yavapai County Superior Court following a bench Trial and a guilty verdict from the judge.

Mr. Jones timely appealed his conviction and sentence to the Arizona Court of Appeals, who ultimately upheld the trial court’s decision in a 2-1 decision, essentially equating cannabis with “hashish” (which had been defined in an earlier 1975 case as resin extracted from a marijuana plant) and cannabis (and/or hashish) as a narcotic drug, distinctly separate from the marijuana leaf/dried flower portion of the plant that was allowed under the AMMA.  Presiding Arizona Court of Appeals Judge Kenton Jones (no relation to Mr. Rodney Jones) wrote a well-reasoned and articulate dissent.

This morning, the Arizona Supreme Court got right down to business, first, discussing its de novo or “fresh” review of the case of statutory interpretation, unencumbered by any deference to previous rulings made by the underlying courts, then discussing the AMMA itself, and what it was intended to do.  Getting down to brass tacks, the Arizona Supremes discussed the definition of “marijuana” IN the AMMA (A.R.S. § 36-2801(8)), which is “all parts of any plant of the genus cannabis whether growing or not, and the seeds of such plant” (emphasis supplied by me.)

Next, the Arizona Supremes dispensed with any need to analyze the criminal code definition of “marijuana,” or even a common understanding of what “marijuana” means, but instead opined that the AMMA’s definition “stands on its own,” with “ALL” being the key word in the AMMA’s definition.  See (Jones, Ariz. S. Ct. (May 28, 2019) at ¶¶ 8-9.  I especially loved this sentence in the opinion:  “[t]he word ‘all,’ one of the most comprehensive words in the English language, means exactly that.”  (Id. at ¶ 9.)  The Arizona Supremes went on to hold that “all parts” of the marijuana plant as defined in the AMMA’s definition, must necessarily refer to the constituent elements of the plant, and the fact that resin must be extracted from the plant, means that it is part of the plant.  See (id.)  Again, “all” means all!

What followed next was a systematic, judicial beat down of the State’s ludicrous arguments that attempted to support the notion that “marijuana” ONLY meant the green leafy or dried flower parts of the plant, and nothing else.  The Jones Court reasoned that the AMMA limited the amount of medical marijuana a qualified patient could possess at a time (2.5 ounces), but not the TYPE of marijuana (flower, resin, etc.)  The Court held that so long as a qualified patient possessed no more than 2.5 ounces of dried flowers, or mixtures or preparations (resins) made from 2.5 ounces of dried flowers, and otherwise complied with the AMMA, they are protected from criminal prosecution.  See (id. at ¶¶ 15-16.)

All in all (pun intended), this was a good day for qualified patients, supporters of the AMMA, and, of course, Mr. Rodney Jones.


As I was writing this blog post, I couldn’t keep Joyce Sims’ song out of my mind…


Arizona Lawmaker Can’t Drive 55, Nor Can He Be Arrested (Apparently)!

An Arizona legislator has made news in recent months for loudly and obnoxiously flaunting his “immunity” from prosecution for repeatedly violating Arizona’s criminal speeding statute, A.R.S. § 28-701.02, which criminalizes speeding over 85 m.p.h. on highways across the state (you can also be cited/arrested for criminal speeding by exceeding 35 m.p.h. in a school crossing zone, exceeding the posted speed limit by 20 m.p.h. in a business or residential zone, or by going over 45 m.p.h. in a business or residential zone if there is no posted speed limit).  Violating the Excessive Speeding statute is a Class 3 misdemeanor for us plebeians, punishable by up to 30-days in jail, 1-year of supervised probation, and up to a $500 fine plus surcharges ($920 with the standard 84% surcharge).

Rep. Paul Mosley, a Republican (you know, the “law and order party,”  the “what don’t you understand about ‘illegal?’ party,” etc.) from Lake Havasu City was popped by an Arizona Department of Public Safety Officer (I refuse to call them “Troopers” until they start wearing those white plastic helmets like they do in Star Wars) for going 97 m.p.h. in a 55 m.p.h. zone in La Paz County, apparently on his way home from Phoenix.  Since 97 m.p.h. is more than the Excessive Speed limit of 85 m.p.h. on the highway, Rep. Mosley should have to face the music like you, I, or Sammy Hagar would, right?  Wrong.

Rep. Mosley smugly told the Officer that he had “legislative immunity,” and couldn’t be cited for speeding.  He then went on to brag about going even faster than 97 m.p.h. (140 m.p.h. to be exact) previously, ON VIDEO!

The legislative immunity Rep. Mosley spoke of is in Article IV, Section 6 of the Arizona Constitution, which states, “[m]embers of the legislature shall be privileged from arrest in all cases except treason, felony, and breach of the peace, and they shall not be subject to any civil process during the session of the legislature, nor for fifteen days next before the commencement of each session.”

Apparently, back in the day, both in Arizona and nationwide, political opponents of sitting legislators would have their goons (elected and un-elected) arrest the legislators before they could vote on certain pieces of legislation at the state house, or in Congress.  Granting legislative immunity from all but the most serious crimes eliminated the possibility of arrest and delay (or absence).

Here’s where it gets interesting, the Arizona Constitutional clause at issue here provides immunity from “arrest in all cases except treason, felony, and breach of the peace…” (emphasis supplied.)  In most cases, at least in cases with previous clients of mine that have been stopped for Excessive Speeding, the officer writes a citation in lieu of arrest for the offense.  Nothing would seem to have prevented the Officer from doing just that with Rep. Mosley on the day of the offense here.  Secondly, while it’s clear that Excessive Speeding is a misdemeanor and NOT a felony (it’s not a treasonous offense either), could Excessive Speeding be considered a “breach of the peace?”

The term, “breach of the peace,” pops up a couple of times in the Arizona Revised Statutes,  most applicably here in A.R.S. § 13-3884, Arrest by a private person (don’t worry, I’ll tie this stuff together!). This statute allows arrests by private persons, “[w]hen the person to be arrested has in his presence committed a misdemeanor amounting to a breach of the peace, or a felony” (emphasis supplied.)  A 2002 Arizona Court of Appeals case discussing A.R.S. § 13-3884, State v. Chavez, held that misdemeanor DUI constituted a “breach of the peace,” rejecting Chavez’s argument that breach of the peace was limited to what made up disorderly conduct (essentially, “disturbing the peace”) under Arizona law citing the phrase’s common law roots, and noting that “other jurisdictions have held, and legal treatises recognize, that dangerous or reckless driving, including DUI, amounts to a breach of the peace . . .”

It would not be a stretch for an Arizona Court to take the not-so-far-leap of equating “dangerous or reckless driving” with Excessive Speeding, especially in a case such as Rep. Mosley’s, where his speed was far in excess of the posted limit of 55 m.p.h., and was only 3 m.p.h. slower than triple digits.

Only after the bad press that Rep. Mosley and the Arizona Legislature received in the aftermath of Rep. Mosley’s non-arrest for Excessive Speeding, in this election year, Arizona Governor Doug Ducey issued an Executive Order that empowers law enforcement agencies to issue citations to (and, I guess, arrest) legislators for excessive speeding, reckless driving, and DUI, equating them all to “breaches of the peace.”

Ultimately, this issue will (maybe) some day, be challenged in the courts and ultimately brought before an appellate court that will (finally) put the issue to rest.  However, even if I had a legislator for a client in such a case, trying to convince the court that Excessive Speeding is not a “breach of the peace,” especially in light of the Arizona Court of Appeals’ decision in Chavez, and Ducey’s Executive Order, would be a formidable, uphill battle.

Good News and Potentially Devastating News regarding the Courts and the Arizona Medical Marijuana Act

As is often the case in our respective lives, there is good news, and there is bad news.  Such is the current state of affairs in the Arizona appellate courts with a couple of their most recent interpretations of the Arizona Medical Marijuana Act (“the AMMA”) and how it applies in the DUI context, and in determining what is/not “marijuana” (as opposed to “cannabis.”)

The Good News – State v. Kemmish

First, let’s start off with the good news.  As you may recall from an earlier blog post, in late 2015, I had a jury Trial in an outlying county (Mohave County) where my client was accused of misdemeanor DUI, and the State’s allegation was that my client had been driving while under the influence of marijuana.  My client had, in his possession, a physician’s recommendation letter obtained pursuant to California’s medical marijuana statute, at the time he was contacted by the law enforcement officer during the traffic stop.

On the eve of the jury Trial (literally, the afternoon before), the State filed a Motion in Limine (Latin for “to limit”), requesting that the court preclude me from introducing evidence of the California physician’s recommendation letter at Trial.  Despite my best efforts to convince the court that the California physician’s recommendation letter was clearly the “equivalent” of a California medical marijuana card (and thus, to be treated the same as an Arizona medical marijuana card would) pursuant to A.R.S. § 36-2804(C), the court granted the State’s Motion.

At Trial, the jury acquitted my client of driving under the influence to the slightest degree, BUT convicted him of driving while there was a drug (marijuana) or its metabolite in his system, pursuant to A.R.S. § 28-1381(A)(3).

After Trial, I convinced my client to appeal the conviction, and the matter was subsequently appealed to the next highest court, the Mohave County Superior Court, and was handled by the Mohave County Public Defenders Office.  I wound up meeting the Deputy Public Defender who handled my (now former) client’s appeal at a Continuing Legal Education class on, not coincidentally, AMMA and criminal law issues, and knew that my former client was in great hands.

A couple of months later, the Arizona Court of Appeals in State v. Kemmish, faced a case with almost the exact same legal issue as mine (except the Defendant in Kemmish was found in possession of a small amount of marijuana and marijuana wax following a traffic stop), namely, whether a California physician’s recommendation letter is the equivalent of a California medical marijuana card, and thus possessed the same force and effect as an Arizona issued medical marijuana card would, pursuant to A.R.S. § 36-2804(C).

The Kemmish Court found that the California physician’s recommendation letter was the equivalent of a California medical marijuana card, and thus possessed the same force and effect as an Arizona issued medical marijuana card.  The Arizona Court of Appeals ultimately upheld the lower, Superior Court’s dismissal of the State’s indictment, and dismissed the State’s appeal, stating that the AMMA’s language was “clear and unambiguous,” when it came to determining what “or its equivalent” meant in A.R.S. § 36-2804(C).

Shortly after the Kemmish decision was published in mid-March 2018, the State in my old case essentially threw in the towel, and moved to dismiss the A.R.S. § 28-1381(A)(3) (the driving with a drug or its metabolite in the system) charge.  The lower court granted the State’s Motion to Dismiss, and the case ended in May of this year.

The Bad News – State v. Jones

Now on to the BAD news.  Two out of three judges on a 3-judge panel of Division One of the Arizona Court of Appeals, on June 26, 2018, issued in State v. Joneswhat could be a potentially devastating opinion to medical marijuana patients and dispensaries, on what immunizes someone from criminal prosecution under the AMMA, and what does not.

The Defendant, Mr. Rodney Jones, was found by law enforcement officers in Yavapai County to be in possession of a small amount of hashish, back in 2013.  At that time, Mr. Jones was a qualifying patient under the AMMA, and had a valid, Arizona issued medical marijuana card.  Prior to Trial, Mr. Jones moved to dismiss the State’s indictment, arguing that his possession of an AMMA card provided an absolute defense to the charge, but the Trial court denied his motion.  Following Trial, Mr. Jones was convicted of Possession of a Narcotic Drug, pursuant to A.R.S. § 13-3408(A)(1), and NOT Possession of Marijuana (don’t worry, we’ll get to that issue in a second), and was subsequently sentenced to 2.5 years in prison.  His appeal followed.

According to the Jones Court, the State and Mr. Jones both agreed that hashish was a form of cannabis distinguishable from the green leafy substance commonly referred to as marijuana (this was probably the FIRST mistake…)  “Hashish” had been defined in an earlier, 1975 Arizona Supreme Court case, State v. Bollander, as “the resin extracted from the marijuana plant.”  The Arizona Criminal Code, specifically, A.R.S. §13-3401(20), defines “cannabis” as “[t]he resin extracted from any part of a plant of the genus cannabis, and every compound, manufacture, salt, derivative, mixture of preparation of such plant, its seeds or its resin.”  Cannabis is classified, under the Arizona Criminal Code, as a “Narcotic Drug,” a Class 4 felony, and its possession is treated more harshly than Possession of Marijuana, which is a Class 6 felony (the lowest level felony in Arizona – AND which has an option, in certain instances, to be reduced to a misdemeanor – an option completely unavailable for Possession of a Narcotic Drug).

The majority of the judges in Jones essentially distinguished the AMMA’s definition of “marijuana” (namely, “all parts of any plant of the genus cannabis, whether growing or not, and the seeds of such plant,” pursuant to A.R.S. § 36-2801(8)) from “hashish,” criminalized as “cannabis,” and held that the AMMA afforded Mr. Jones NO protection from criminal prosecution for the small amount of hashish found in his possession in Yavapai County.

Presiding Court of Appeals Judge Kenton Jones (no relation to the Defendant Rodney Jones) wrote a well-reasoned dissent to his 2 Court of Appeals colleagues, and argued that the AMMA’s meaning was clear and unambiguous – that marijuana, which includes “all parts of any plant of the genus cannabis,” necessarily includes the resin extracted from the plant, that the majority in Jones minced words, and also went against the voters’ wishes in approving legal medical marijuana in the first place.

Judge Jones also discussed Arizona Department of Health Services (the Arizona agency tasked with regulating application of the AMMA) regulations regarding marijuana dispensaries, and how these regulations, specific to marijuana edibles, discuss “concentrates . . . that contain marijuana,” which are the same thing as resins, to support his argument that the language of the AMMA’s marijuana definition is unambiguous.

Where this gets dicey for AMMA patients, dispensaries, and suppliers is the fact that most, if not all, marijuana edibles are made with marijuana resin (or “hashish,” according to the Jones case) and are thus, now, illegal under Arizona law.  Sheila Polk, the current Yavapai County Attorney is an outspoken critic of medical marijuana, with an anti-marijuana zeal not seen since Reefer MadnessThe danger here, especially for AMMA patients and dispensaries located in Yavapai County, is that law enforcement officials now have the authority, pursuant to the Jones decision, to raid dispensaries selling marijuana products made with cannabis resin (or “hashish”), seize these products, and potentially prosecute dispensary owners for Possession of Narcotic Drugs for Sale, as a Class 2 felony, pursuant to A.R.S. § 13-3408(A)(2) (a statute that carries a mandatory prison sentence, should the owner be convicted).  Any AMMA patient in Yavapai County, found by law enforcement officials with an edible created with resin could find themselves like Rodney Jones, facing a Class 4 felony for Possession of Narcotic Drugs in the Yavapai County Superior Court.

As bleak as all of this sounds, there MIGHT be a way out – the Arizona Court of Appeals ruling in Jones CAN be appealed to the Arizona Supreme Court.  I’m almost positive that Mr. Jones’ attorneys have already filed a Notice of Appeal to that Court.  The thing is, the Arizona Supreme Court’s review is discretionary, meaning, they can decide to allow the Arizona Court of Appeals’ ruling to stand with no comment, or they can take the case up to decide it themselves (and either affirm the Court of Appeals’ decision, or reverse it).  In a worse case scenario, after an Arizona Supreme Court decision affirming the Arizona Court of Appeals’ decision, Mr. Jones and his attorneys could file a habeas corpus petition in the U.S. District Court of Arizona, to attempt to find relief there (or in an appeal from there to the U.S. Court of Appeals for the 9th Circuit, located in San Francisco, and from there, potentially, the U.S. Supreme Court).

Stay tuned!  Like my old case in Mohave County, I will keep tabs on Mr. Jones’ matter as it courses through the remainder of the Arizona Courts, and, hopefully, gets overturned.

Where Does Michael Floyd Go From Here (Other Than to the Patriots)? A Date with Destiny and the Scottsdale City Court.

By Cary L. Lackey, Esq. of The Law Office of Cary L. Lackey, P.C. on December 22, 2016.

As I am sure that most of you have heard, around 2:45 a.m. on Monday, December 19, 2016, hours after flying back from the NFL Arizona Cardinals vs. Miami Dolphins game, (now) former Arizona Cardinals’ (and current New England Patriot) wide receiver, Michael Floyd was arrested by Scottsdale Police Officers after being found asleep behind the wheel of his SUV in a left-hand turning lane of a street near downtown Scottsdale.  If you haven’t seen the video yet, TMZ Sports has a pretty good copy of it, here.

The sports media world has been abuzz about the ramifications of Mr. Floyd’s arrest, and what it means pursuant to their interpretation of Arizona DUI law.  I will attempt to make sense of Mr. Floyd’s current predicament (from what I can glean of it, fact-wise, from media sources) viewed through the prism of the applicable Arizona DUI law that I am familiar with.

The Basics

From what has been reported by The Arizona Republic, Mr. Floyd submitted to a blood-alcohol test requested by Scottsdale Police officers, and the BAC (or blood-alcohol content) was found to be .217.  Arizona’s “legal limit” is .08, so Mr. Floyd’s BAC was almost 3 times the limit.  That’s no bueno.

From all indications, so far, it appears as though Mr. Floyd’s case has been (or will be) filed in the Scottsdale City Court and will be prosecuted by the Scottsdale Prosecutor’s Office – one of THE most inflexible prosecuting agencies in the metro-Phoenix area, in my humble opinion.

“Super” Extreme DUI WITH a Prior Conviction (Yikes!)

In Arizona, DUI’s with a BAC over .150 to .200 are classified as “extreme” DUI’s, pursuant to A.R.S. § 28-1382.  With Mr. Floyd’s BAC over .200 (at a .217), he is in the category commonly referred to as “super extreme” DUI.  To make matters worse, Floyd purportedly had a DUI conviction back in 2011 when he was in college at the University of Notre Dame in South Bend, Indiana, so IF (and that can be a big “if,” discussed in greater detail below) the Scottsdale City Prosecutor’s Office can “prove up” Floyd’s 2011 Indiana prior conviction for DUI, that ups the ante considerably as far as DUI penalties under Arizona law are concerned.

Assuming that the Scottsdale Prosecutor’s Office can prove up the 2011 Indiana DUI prior conviction, pursuant to A.R.S. § 28-1382(E)(1), since it is within 7-years of this most recent DUI, Mr. Floyd is looking at 180-days in jail, 90-days of which must be served consecutively.  In addition, he must perform at least 30-hours of community restitution (i.e., community service – which shouldn’t be too hard, as the NFL has a ton of community service options to choose from), his driver’s license will be revoked for 1-year, but he CAN apply for a special ignition interlock restricted driver’s license after 45-days.

The “Good” News

Ostensibly, Floyd is looking at 90 consecutive days in jail, 180-days total.  The good news is that all of that jail time need NOT be served behind actual, jail cell bars.  The sentencing Judge has the option (following the request of Mr. Floyd’s defense counsel) of sentencing Mr. Floyd to 36-days of actual jail (20% of 180 days).  Of these 36-days, Mr. Floyd can do 34 of them (minus the weekends) on work release, meaning, that he’d be allowed to “go to work” 12-hours every day, returning to the jail for the other 12-hours, Monday through Friday, until 34 of the 36 days have been served.  Up front, he HAS to serve 48-hours (2 days) in jail.  The remaining 144 days can be served via home detention, where Mr. Floyd would be required to wear an ankle bracelet and be monitored through a device that would ensure that he kept a curfew (with allowances to go to work), and was not drinking at home.

How This Could Work…Or NOT

Mr. Floyd is a unique case when it comes to his “job” – he’s not a regular Joe with a lunch pail who heads off to his construction site or cubicle, Monday through Friday – he’s a highly paid, highly specialized, professional athlete.

Mr. Floyd would almost certainly have to serve his jail sentence during the off-season.  I believe that there’s an argument that off-season work outs in the gym and/or on the football field would constitute “work,” making him work-release eligible.  The problem is going to be finding a jail facility, out-of-state, that would allow him to serve his work release jail time.  If he can, it would probably be easiest to do the time during the off-season here in the Phoenix metro area, as there are several professional training facilities to choose from that service professional athletes in all sports during their respective off-seasons.

Once Floyd gets past the work release jail-time hurdle, it shouldn’t be THAT big of a problem getting his home detention transferred to whatever state his camp is in, should the jail sentence run into the Patriot’s training camp schedule.

Worst Case Scenario

As I read about Mr. Floyd’s predicament, the specter of that 2011 Indiana prior DUI conviction loomed large in my thinking.  I wondered whether Mr. Floyd actually took the time to get his driver’s license (whether from his home state of Minnesota or maybe Indiana, if he was licensed there) reinstated after the 2011 Indiana DUI conviction.  If Mr. Floyd did get his license reinstated, then applied for and received an Arizona driver’s license, then he should be good to go.

Usually, the Scottsdale Police are pretty good about checking the status of a person’s driver’s license, even if it is from out-of-state.  IF Mr. Floyd did NOT get his Minnesota (or Indiana) driver’s license reinstated after that 2011 conviction, then he could not have received an Arizona driver’s license, and there would be a suspension on his privilege to drive that would follow him to Arizona (and to Scottsdale on December 19, 2016).  If THAT happened, Mr. Floyd would be staring down the barrel of an Aggravated DUI, which is a Class 4 felony (not a misdemeanor), pursuant to A.R.S. § 28-1383.  The worst part about an Aggravated DUI is that a person convicted of it is NOT eligible for probation until 4-months in the Arizona Department of Corrections (prison, not jail) has been served.  There is NO work release available for prison time – it is straight time, 24-hours in, day for day, until 85% of that 4-month sentence (minus any back time) has been served.

Light at the End of the Tunnel?

As hinted at previously, sometimes, prosecutors have great difficulty “proving up” prior convictions.  In order to “enhance” a person’s sentence, they have to prove, beyond a reasonable doubt, to a jury, that, essentially, the person on the prior conviction record is the same person before the Court in the instant case (usually done by way of fingerprint analysis), that the prior conviction for DUI in the one state has the same elements as a DUI conviction in Arizona, and that the “record” on the prior conviction received from the one state complies with  Arizona Rule of Evidence 902 (if it purports to be, as many do, a “self-authenticating” document from another state Court).

Since this is a “high profile” case, a lot of eyes are going to be on the Scottsdale Prosecutor’s Office.  As I have said, that office has a reputation amongst most practitioners that I know (and experienced by me, personally) to be extremely inflexible when it comes to negotiating plea agreements.  With that being said, if there IS, by chance, something not quite right with that Indiana prior, the prosecutor MAY make a deal.  In Mr. Floyd’s case, if there is a way to get down to a “regular” extreme DUI (non-“super”) without a prior conviction, that would save him a considerable amount of time (and would probably be the best case scenario on a plea).  Most likely though, I’m thinking that with a good lawyer (Mr. Floyd, I AM available…) he may have a shot at a “super” extreme with NO prior (IF there’s an issue with the Indiana prior), which would make him eligible for A.R.S. § 28-1382(I) (or, better known amongst Arizona DUI attorneys as “subsection I”), where he could receive as little as 14-days of jail (with 12-days on work release) if he agreed to be placed on probation, and install an ignition interlock in his vehicle for 12-months.


Believe it or not, “super” extreme DUIs with an allegeable prior DUI conviction are fairly rare.  Most folks wind up with a “regular,” non-extreme DUI after driving poorly with a few drinks, and the aftermath becomes an “eye opening” experience that is not repeated. Super extreme DUIs with a prior convictions, on the other hand, are THE most harshly treated misdemeanors on the books under Arizona law, with a ton of mandatory requirements.  Part of the reason for the harsh treatment, I believe, was the legislature’s belief that people with higher BAC levels need to be treated more severely than others.  I like to think that people with higher BAC levels need the most help.

I’m not trying to preach, but I have unfortunately seen (and represented) many people with high BAC levels on DUIs.  Most of the enlightened ones realize that they have an issue with alcohol, and seek all of the help that they can get.  Many go on to put the ordeal behind them, and go on to live productive lives.  Some, unfortunately, don’t – and wind up with felony DUIs, prison sentences, or worse (vehicular homicides, their own deaths by drinking and driving – or just drinking).  With a second DUI within 5-year and a BAC level almost 3 times Arizona’s legal limit, I sincerely hope that Mr. Floyd realizes that he needs help, and that he GETS that help.  I haven’t touched on the NFL discipline that Mr. Floyd is CERTAIN to face, but mandatory treatment is a big part of it.  I hope Mr. Floyd takes to the treatment, and is able to put this ordeal behind him and continue to lead a healthy life.

It IS Where You’re From AND Where You’re At When It Comes to Alleged Crimes on Tribal Land

By Cary L. Lackey, Esq., of The Law Office of Cary L. Lackey, P.C. on June 1, 2016.

With apologies to one of my favorite hip-hop groups of all time, Eric B. & Rakim, specifically, a line from “I Know You Got Soul,” a hit off of their seminal, 1987 album, Paid In Full, it pretty much DOES depend on both where you are from, and where you’re “at” when it comes to alleged crimes that occur on tribal land in the United States.

I thought about this issue while attending an Indian Law Continuing Legal Education (“CLE”) program a few months back, held at the Talking Stick Resort & Casino near Scottsdale, Arizona.   Attorneys have to have a certain amount of CLE hours every year to keep practicing law.  This year, I completed quite a bit of my mandatory CLE obligation at this particular program put on by the Federal Bar Association (of which I am a member). The FBA puts on an Indian Law Conference every year, and if you are an attorney interested in Indian law, I highly recommend it.

Indian law was one of my favorite subjects in law school back at the old alma mater, Arizona State University College of Law, and it was great seeing my old classmates, as well as my ageless professor who taught the class, Professor Rebecca Tsosie, at the Conference.  One of the things that I liked about the class was learning that Indian law, far from being isolated from other legal fields, intersects so many, including but not limited to, environmental, family, water, constitutional (obviously), intellectual property, gaming, etc.

Indian law also intersects greatly with the legal field of Criminal law, and I have had to deal with that intersection often in my practice.  I very often represent Non-Native Americans who have been accused of crimes on tribal land, most specifically, in and around the Native American gaming casinos and resorts in the metropolitan Phoenix area.  I have also represented Native American clients primarily in state court (where the alleged offenses did NOT occur on tribal land – we’ll get into that momentarily).

The first step in figuring out “where you’re at” is to establish whether you are on tribal land, or “Indian Country,” as defined in the United States Code at 18 U.S.C. § 1151.  Generally, Indian Country is “(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government . . . including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State, and (c) all Indian allotments [ ].” 18 U.S.C. § 1151.  Accordingly, this would include gaming casinos, which are located on Indian reservations, dependent Indian communities, or allotments.

Next, the “where you’re from” part (which can be a little tricky) needs to be determined.  If you are NON-Native American, on tribal land, and are accused of committing a misdemeanor offense (like, say, a DUI under Arizona law),  which has no victim (Native American or otherwise), you will be under Arizona’s jurisdiction, and will most likely be summoned or cited to appear in Justice Court (generally, the West Mesa Justice Court for offenses allegedly committed at Talking Stick casino/resort, and the San Marcos Justice Court in Chandler for offenses allegedly committed at Wild Horse Pass casino/resort).  State jurisdiction would also extend to Non-Native Americans alleged to have committed certain felony offenses on tribal land, provided that they are not “Major Crimes” (which we will talk about shortly) OR involved a Native American victim (we’ll discuss that too).

If you are a NON-Native American facing a criminal allegation on tribal land where the victim is Native American, the matter will be heard in federal court (the U.S. District Court).  However, the 1994 Violence Against Women Act (reauthorized by Congress and signed into law by President Obama in 2013) now grants the Tribes jurisdiction over Non-Native Americans who commit domestic violence crimes against Native Americans on tribal land.

If you are a Native American accused of committing a misdemeanor offense on tribal land in a “victimless” crime (for example, a misdemeanor DUI) or where the victim is also Native American, tribal jurisdiction would apply.

However, if you are Native American on tribal land, and are accused of committing a “Major Crime,” pursuant to 18 U.S.C. § 1153 (generally, murder, manslaughter, kidnapping, maiming, incest, felony assault, assault against a minor younger than 16 years old, felony child abuse or neglect, arson, burglary, or robbery), regardless of WHO the victim is (Native American or Non-Native American), you will be in federal court.  However, if the victim also happens to be Native American, the tribe may have concurrent jurisdiction – meaning you could be prosecuted in both federal AND tribal courts.

If the accused is Native American, the alleged victim is also Native American, both are on tribal land, and the crime is NOT a “Major Crime,” the tribe will have exclusive jurisdiction.

So, as you can see, a lot depends on where you are, and who you are, when it comes to crimes allegedly committed on tribal lands.  If you are accused of committing a crime on tribal land, you need an attorney who understands these basic concepts of Indian Law and how they intersect with criminal law – federal, tribal, and state.  Please contact me if I can be of any help!

Medical Marijuana Cards and their “Equivalents:” Across State Borders, into Arizona, and Down the Rabbit Hole

By Cary L. Lackey, Esq., of The Law Office of Cary L. Lackey, P.C. on January 25, 2016.

Late last year, I represented a client in an outlying (from Phoenix, that is) Justice Court who had been arrested for DUI-Drugs, specifically, marijuana.  The State alleged that my client’s (1) driving had been impaired to the slightest degree by marijuana, and that (2) there was a drug and/or its metabolite (marijuana) in his body at the time.  My client was on his way to Phoenix from Nevada, and had been approved to use marijuana for medical use, by a licensed, California physician (we’ll get into why this is important a bit later).

As you may know from reading previous postings on this blog, or from elsewhere on the web, a relatively recent Arizona Supreme Court opinion, State ex rel. Montgomery v. Harris (Shilgevorkyan), 234 Ariz. 343, 322 P.3d 160 (2014), held that the State must show the presence of an impairing marijuana metabolite in the person’s body at the time of driving, in order to prove that there was a drug (marijuana) or its metabolite in the person’s body at the time of the DUI.  A.R.S. § 28-1381(A)(3).

More recently, on November 20, 2015 (about a week before my Trial), in Dobson v. McClennen, 238 Ariz. 389, 361 P.3d 374 (2015), the Arizona Supreme Court dealt with the issue of whether the Arizona Medical Marijuana Act (“AMMA”) immunized a medical marijuana cardholder from DUI prosecution, specifically, pursuant to A.R.S. § 28-1381(A)(3) (drug or metabolite in the person’s body).  In Dobson, Ms. Dobson, the driver, was an Oregon medical marijuana cardholder who had been stopped by Mesa Police officers, and subsequently prosecuted for DUI-Drugs.  In holding that the AMMA does NOT immunize medical marijuana card holders from DUI prosecution, the Arizona Supreme Court DID rule that the AMMA provides a DUI defendant with an “affirmative defense” to the charge. An “affirmative defense” is one where the defendant (rather than the State or government) presents evidence or a justification that, if found credible, would tend to negate the criminal liability.  Examples of affirmative defenses include self-defense, insanity, entrapment, and necessity.

Just prior to the start of my Trial, similar to the Defendant(s) in Dobson, the State filed a Motion in Limine (Latin for “motion to limit,” basically…) to preclude me from raising the affirmative defense to the (A)(3) DUI charge because my client did NOT possess an actual, California issued medical marijuana card at the time of the traffic stop.  What my client DID have on him at the time of the traffic stop was a copy of his Physician Statement and Recommendation (“recommendation”) from a California-licensed physician (which he actually showed to the arresting police officer).

California Health and Safety Code Section 11362.5, states, in pertinent part, that:

The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:

(A)     To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

(emphasis supplied).

Meanwhile, the AMMA has a provision that deals specifically with licensed, medical marijuana patients from other states, namely, A.R.S. § 36-2804.03(C):

A registry identification card, or its equivalent, that is issued under the laws of another state, district, territory, commonwealth, or insular possession of the United States that allows a visiting qualifying patient to possess or use marijuana for medical purposes in the jurisdiction of issuance has the same force and effect when held by a visiting qualifying patient as a registry identification card issued by the department, except that a visiting qualifying patient is not authorized to obtain marijuana from a nonprofit medical marijuana dispensary.

(emphasis supplied).

A “visiting qualifying patient” is defined in A.R.S. § 36-2801(17), as a person who “(a) . . . is not a resident of Arizona or who has been a resident of Arizona less than thirty days. (b) [w]ho has been diagnosed with a debilitating medical condition by a person who is licensed with authority to prescribe drugs to humans in the state of the person’s residence or, in the case of a person who has been a resident of Arizona less than thirty days, the state of the person’s former residence.”

It was clear (at least to me), from a plain reading of A.R.S. § 36-2804.03(C), that a medical marijuana card – or its equivalent – from another state carries the “same force and effect” in Arizona, as it would in the patient’s home state.  It was also clear (again, to me, at least) that my client’s California-physician provided recommendation was the working equivalent of a California Medical Marijuana card, and thus would carry the same force and effect in Arizona as it did in California.

As I discovered, many California medical marijuana patients that receive their respective recommendations from physicians don’t even bother with ever actually applying for, receiving, and carrying around California issued medical marijuana cards – the recommendations are enough to enable them to purchase medical marijuana anywhere in their state.

Unfortunately for my client, the Judge did not believe that the recommendation was the “equivalent” of a California medical marijuana card, granted the State’s Motion in Limine, and precluded me from raising an affirmative defense to the (A)(3) DUI charge (only).  All was not bad news, however, as we DID receive a Not Guilty verdict at the conclusion of the Trial on the (A)(1) DUI charge (driving impaired to the slightest degree by marijuana).

Currently, the case is on appeal to the next highest Court (in this case, the Superior Court), and I will keep you guys/gals posted on the outcome of that particular decision.

In the meantime, keep your eyes and ears open for new issues in this realm, as the law is constantly evolving and changing.  I’ll do my best to blog on these issues as they continue to arise.

Stay tuned…

What to do with a “Bumper Crop” of Medical Marijuana under Arizona’s Medical Marijuana Act? (Do the Scales of Justice stop at 2.5 ounces?)

By Cary L. Lackey, Esq. of The Law Office of Cary L. Lackey, P.C. on Tuesday, October 27, 2015.

Relatively recently, on August 28, 2015, Division Two (which primarily covers Pima County and the rest of Southern Arizona) of the Arizona Court of Appeals, in State v. Liwski, Case No. 2 CA-SA 2015-0044 (Aug. 28, 2015), accepted “Special Action” jurisdiction over an issue involving whether a “designated caregiver” under the Arizona Medical Marijuana Act, A.R.S. § 36-2801 through 36-2819 (“the AMMA”) could claim a defense under the AMMA that would have allowed him to possess more than the statutory amount of 2.5-ounces, and shield him from criminal prosecution.  The Court of Appeals’ decision in Liwski has serious implications for designated caregivers, and “qualifying patients,” under the AMMA, especially where an “excess” of marijuana over the 2.5-ounce limit is involved.

A “Special Action” is, essentially, a way for a ruled-against party at the trial court level, to petition a higher court, in this case, the Arizona Court of Appeals, to rule on an issue where the ruled-against party believes the trial court judge erred on a legal issue, and there is no remedy available to the ruled-against party on appeal.

In Liwski, the trial court ruled that the defendant, Mr. Ryan Gillie, could present a defense based on the AMMA that, as a “designated caregiver,” he was permitted to carry more than the statutorily prescribed amount of 2.5-ounces of medical marijuana, in order to dispose of it (by transferring it to another “qualifying patient,” that Gillie was not the “designated caregiver” for).

Before we get into the meat and potatoes of the Arizona Court of Appeal’s decision, let’s review some of the applicable provisions of the AMMA, as well as the underlying facts of the case.

First, pursuant to the AMMA, a “designated caregiver” is defined as a person who:

(a) Is at least twenty-one years of age.

(b) Has agreed to assist with a patient’s medical use of marijuana.

(c) Has not been convicted of an excluded felony offense.

(d) Assists no more than five qualifying patients with the medical use of marijuana.

(e) May receive reimbursement for actual costs incurred in assisting a registered qualifying patient’s medical use of marijuana if the registered designated caregiver is connected to the registered qualifying patient through the department’s registration process. The designated caregiver may not be paid any fee or compensation for his service as a caregiver. Payment for costs under this subdivision shall not constitute an offense under title 13, chapter 34 or under title 36, chapter 27, article 4.

A.R.S. § 36-2801(5).

A “qualifying patient,” “means a person who has been diagnosed by a physician as having a debilitating medical condition.”  A.R.S. § 36-2801(13).

An “allowable amount of marijuana,” is defined by the AMMA as:

(a) With respect to a qualifying patient, the “allowable amount of marijuana” means:

(i) Two-and-one-half ounces of usable marijuana; and

(ii) If the qualifying patient’s registry identification card states that the qualifying patient is authorized to cultivate marijuana, twelve marijuana plants contained in an enclosed, locked facility except that the plants are not required to be in an enclosed, locked facility if the plants are being transported because the qualifying patient is moving.

(b) With respect to a designated caregiver, the “allowable amount of marijuana” for each patient assisted by the designated caregiver under this chapter means:

(i) Two-and-one-half ounces of usable marijuana; and

(ii) If the designated caregiver’s registry identification card provides that the designated caregiver is authorized to cultivate marijuana, twelve marijuana plants contained in an enclosed, locked facility except that the plants are not required to be in an enclosed, locked facility if the plants are being transported because the designated caregiver is moving.

A.R.S. § 36-2801(1) (emphasis supplied).

The AMMA provides criminal and civil protection to qualifying patients and designated caregivers, under the following terms:

A registered qualifying patient or registered designated caregiver is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege, including any civil penalty or disciplinary action by a court or occupational or professional licensing board or bureau:

  1. For the registered qualifying patient’s medical use of marijuana pursuant to this chapter, if the registered qualifying patient does not possess more than the allowable amount of marijuana.

  2. For the registered designated caregiver assisting a registered qualifying patient to whom he is connected through the department’s registration process with the registered qualifying patient’s medical use of marijuana pursuant to this chapter if the registered designated caregiver does not possess more than the allowable amount of marijuana.

  3. For offering or providing marijuana to a registered qualifying patient or a registered designated caregiver for the registered qualifying patient’s medical use or to a registered nonprofit medical marijuana dispensary if nothing of value is transferred in return and the person giving the marijuana does not knowingly cause the recipient to possess more than the allowable amount of marijuana.

A.R.S. § 36-2811(B) (emphasis supplied).

Gillie, a designated caregiver under the AMMA for at least one qualifying patient, was apparently stopped by police and found in possession of 3.5-ounces of marijuana.  He was arrested, and officers subsequently discovered growing equipment, and marijuana plants, at his home.  Gillie was formerly charged by the Pima County Attorney’s Office with Possession of Marijuana for Sale (a Class 4 felony since we are only talking about 3.5-ounces total), Production of Marijuana (a Class 5 felony), and Possession of Drug Paraphernalia (a Class 6 felony).

At an evidentiary hearing held prior to trial, Gillie presented evidence that he intended to deliver 2.5-ounces of the 3.5-ounces of marijuana he possessed to a qualifying patient that he was the designated caregiver for, and the excess, 1-ounce remaining to another, presumably, qualifying patient that “he was not the designated caregiver” for.  Liwski, Ariz. Ct. App. (Aug. 28, 2015), at ¶ 2 (emphasis supplied).

The Court of Appeals in Liwski noted that a designated caregiver could assist up to five qualifying patients with medical marijuana, but – surprisingly – didn’t really hone in on the fact that the excess, 1 ounce was going to a patient that Gillie was NOT designated the caregiver for.

The Court of Appeals, instead, focused on the “immunity” from prosecution provisions of A.R.S. § 36-2811(B)(2)-(3), and their inapplicability to Gillie’s situation.

Specifically, the court first noted that Gillie had violated (B)(2)’s restriction of a being a registered designated caregiver with more than the allowable amount of marijuana, since he possessed 3.5-ounces of medical marijuana, 1-ounce over the 2.5-ounce limit.

The court next dispensed with Gillie’s argument that (B)(3), somehow, granted him, as a designated caregiver, immunity from prosecution, since, he possessed the excess, 1-ounce of marijuana prior to offering or providing it to a qualifying patient, in exchange for nothing of value.  The court reasoned that (B)(3) did NOT “create a separate allowance for possession, but rather creates a means by which a [qualifying patient or designated caregiver] can ensure they do not possess more than the allowable amount of marijuana,” by, essentially, transferring it in exchange for nothing of value.  Liwski, at ¶¶ 10, 18.

The important thing to take away from the Court of Appeal’s Liwski decision is that the courts are going to hold qualifying patients’ and designated caregivers’ proverbial feet to the fire when it comes to the statutory limits of possession medical marijuana.  Anything over 2.5-ounces is strictly verboten, and it appears that law enforcement and prosecuting agencies – statewide – will not hesitate to arrest and prosecute, respectively, medical marijuana cardholders that are even, literally, 1-ounce over the threshold.

Ultimately, the Court of Appeals vacated the trial court’s denial of the prosecution’s motion to preclude Gillie’s “immunity” defense, and sent the matter back to the trial court for resolution; however, Gillie’s attorneys have since filed a Petition for Review (of the Court of Appeals’ decision) with the Arizona Supreme Court – so stay tuned (I will update this blog post after the Arizona Supreme Court either denies to review Gillie’s Petition, or accepts it, and makes a ruling).

In the interim, if you are a designated caregiver with up to 5 qualifying patients, make sure you do not possess, at any given time, more than 2.5-ounces of marijuana when you delivering same to a qualifying patient.  Moreover, if you have a “bumper crop” of marijuana that amounts to more than 2.5-ounces, your best bet is not possessing more than 2.5-ounces of the “excess” when you are transferring/donating it to a non-profit dispensary or (other) qualifying patient.

If you, or a loved one, as a qualifying patient or designated caregiver under the AMMA, ever face criminal prosecution for Possession of Marijuana, Possession of Marijuana for Sale, and/or Possession of Drug Paraphernalia charges, please do not hesitate to contact me for help.

Maricopa County Ain’t Mayberry and MVD Ain’t Hooterville When It Comes to Aggressive (and Reckless) Driving

By Cary L. Lackey of The Law Office of Cary L. Lackey, P.C. on Thursday, October 15, 2015.

About 2 or 3 times a week, I get calls or emails from people who have been stopped and cited, or in some cases, arrested, by police officers in Maricopa County (usually on the freeways, but sometimes, on city streets) for Aggressive Driving or Reckless Driving.

Most recently, earlier this week, I received a call from a fellow who had been stopped and almost arrested for Aggressive Driving by an Arizona Department of Public Safety (“DPS”) Officer on I-10.  This particular guy had been accused of speeding, which he denied, and of making unsafe lane changes.  He was very upset about the whole deal, and felt that he had been “targeted” by the DPS Officer.

One of the things that stuck out about this particular call was that this fellow had blown off and rejected a plea offer made by a Deputy Maricopa County Attorney and was now set for Trial.  I asked him several pointed questions about the nature of the plea offer, he told me it was to Excessive (or, Criminal) Speeding, Arizona Revised Statute section 28-701.02, which is a lower level misdemeanor, and carries FAR less draconian penalties at MVD on their point system (3 points as opposed to 8 and an automatic suspension of his driver’s license/privilege to drive), in addition to exposing him to far less jail time (zero if he took the plea), than he’d face if he were convicted at Trial (up to 6-months, maximum, in jail).  I asked him if the plea allowed (or disallowed) a request to have the Judge send him to Defensive Driving School in lieu of being convicted on the Criminal Speeding, and he said that he “didn’t know.”

Understand that a Court will NOT appoint an attorney to represent an indigent person (a person that cannot afford an attorney) facing criminal charges IF the prosecutor is not seeking probation or jail time (up front).  In this person’s case, the State just wanted a fine.  Thus, this fellow had no attorney to advise him of his options, nor did he have anyone to explain to him the draconian implications that he and his privilege to drive would face from MVD, should he be convicted at Trial.

What brings me to Mayberry and Hooterville was this guy’s expressed belief to me that he would simply go to Court, meet with a kindly judge, explain his situation, and be told “well son, you seem like a nice boy, let me just tell the prosecutor to dismiss this whole thing, and you just go on home!”

Like I told him, this ain’t Mayberry.

First, the criminal justice code in this state (and many others) were re-written during and immediately after the Reagan era. During the hey days of the Reagan “revolution,” legislators and many people believed that criminals/people accused of crimes had been, somehow, “coddled” by “liberal judges” in the past, and that judicial discretion in criminal cases needed to be limited, so these criminals would not “get away” and would “get what they deserved.”  The practical impact of this limited judges from exercising discretion to what they saw fit in the particular case that was before them, to following mandatory sentencing provisions written into these revised criminal codes.  Statutes re-written by legislators and signed into law by governors now instructed the judges as to what they “shall” and “shall not” do, as opposed to what they “may” and “may not” have done in the past.

Second, prosecutors – particularly ones beginning their legal careers – which is often the case of prosecutors handling these types of lower-level, misdemeanor traffic cases in the Maricopa County Justice Courts, especially – do NOT get promoted and receive raises from their supervisors by “looking out” for the “little guy,” and “cutting breaks” for people.  They are there to do a job – and that job is to convict people of crimes when they believe there is a reasonable likelihood of doing so.

In this fellow’s particular case, he was charged with Aggressive Driving, which is basically comprised of civil or criminal speeding, PLUS:

  • failure to obey traffic control devices, and/or
  • passing or overtaking on the right, off the roadway/pavement, and/or
  • making an unsafe lane change, and/or
  • following too closely, and/or
  • failure to yield the right of way.

Now, a police officer COULD cite someone separately with one or more of these offenses, as I have seen many citations where they do just that.  When/If the officer DOES ultimately decide to cite someone with Aggressive Driving, it ups the “ante,” if you will, considerably.

The penalties for a first time conviction of Aggressive Driving, as a Class 1 misdemeanor, are:

  • up to 6-months in Jail, and/or
  • up to 3-years of supervised or unsupervised probation, and/or
  • up to a $2,500 fine plus an 84% surcharge, and
  • mandatory Traffic Survival School (which is NOT Defensive Driving School – where you attend or complete it online and get the ticket dismissed – but an ALL day, in-person program where your fellow students will primarily be people convicted of DUIs, Reckless Driving, and Racing), and/or
  • a 30-day suspension of the person’s driver’s license/privilege to drive (which is, mercifully, left up to the discretion of the judge, in THIS particular instance).

Going to Trial on a “the cop had it out for me” defense is usually NOT going to work, especially in a case such as the one we have here where the Trial is NOT jury eligible (however, Reckless Driving IS jury eligible).

What this caller needed was an attorney that had a firm understanding of the statutes at play here, as well as the consequences for the person’s driver’s license that he faced at MVD, rather than going it alone, and stepping into a Trial that he was ill prepared to defend.

A Metabolite By Any Other Name…

By Cary L. Lackey of The Law Office of Cary L. Lackey, P.C. posted on Friday, December 19, 2014.

Back in November of 2010, Arizona voters narrowly passed (with 50.1% of the vote) what was then called Proposition 203, which “legalized” medical marijuana.

Against this backdrop, the Arizona Supreme Court, in an April, 2014 decision, State ex rel. Montgomery v. Harris, 234 Ariz. 343, 322 P.3d 160 (2014), essentially defined what type of drug metabolite is illegal when it comes to Arizona’s DUI law.  Specifically, one of Arizona’s DUI statutes prohibits a person from driving or being in actual physical control of a vehicle “while there is any drug . . . or its metabolite in the person’s body.” A.R.S. § 28-1381(A)(3).  The Arizona Supreme Court, in the Harris decision, made it clear that only a metabolite that causes impairment runs afoul of the law (A.R.S. § 28-1381(A)(3)).

In Harris, the defendant, Hrach Shilgevorkyan, was stopped by Mesa police officers for speeding and making unsafe lane changes.  Following the stop and some field sobriety tests, Mr. Shilgevorkyan (hereafter, “Mr. S”) admitted to the officers that he had smoked “weed” the previous night. The officers promptly arrested Mr. S, and had his blood drawn.

The test of Mr. S’s blood revealed only the presence of Carboxy-THC, which is a metabolite, or by-product of the body breaking down the primary psychoactive component of marijuana, tetrahydrocannabinol (better known as “THC”).

Mr. S was subsequently charged by the State with 2 counts of DUI:  driving while impaired to the slightest degree by drugs, A.R.S. § 28-1381(A)(1), AND driving with a drug or its metabolite in the body, A.R.S. § 28-1381(A)(3).

An evidentiary hearing was held before the Trial court where the following facts were acknowledged by the court:  (1) Hydroxy-THC, a marijuana metabolite that causes impairment, does not exist in the blood for very long, (2) Hydroxy-THC and Carboxy-THC are the 2 major marijuana metabolites, (3) Carboxy-THC is inactive and does NOT cause impairment, and (4) Carboxy-THC can remain in a person’s body for as many as 28-30 days after ingestion of marijuana.

After the Trial court granted Mr. S’s Motion to Dismiss, the State appealed, and the matter eventually wound up before the Arizona Supreme Court.

The defense argued that “metabolite,” which is not defined anywhere in the Arizona statutes, is singular and not plural as it is written in A.R.S. § 28-1381(A)(3), and thus since the primary metabolite of marijuana, Hydroxy-THC, was not found, the analysis should end there.

The State countered with the argument that “metabolite” means ALL metabolites, primary or otherwise; there is a flat ban on any and all metabolites pursuant to A.R.S. § 13-1381(A)(3).

The Arizona Supreme Court found neither argument especially persuasive. They took issue with the State’s argument, reasoning that if there was a flat ban on ALL drugs and metabolites, otherwise legal conduct (i.e., ingesting medical marijuana) would be outlawed, specifically mentioning the AMMA.

The Court noted “[b]ecause Carboxy-THC can remain in the body for as many as 28 to 30 days after ingestion, the State’s position suggests that a medical marijuana user could face prosecution for driving any time nearly a month after they had legally ingested marijuana.”

The Court then moved on to the legislative history behind the DUI-drug/metabolite statute and noted that the Arizona Legislature, in their infinite wisdom, sought to prevent impaired driving.

The Court subsequently held that the “metabolite” referenced in A.R.S. § 28-1381(A)(3) is limited to any of a proscribed substance’s metabolites that are capable of causing impairment.” (emphasis supplied).

Because Carboxy-THC, the only metabolite found in Mr. S’s blood, did not cause impairment, the Arizona Supreme Court vacated the Court of Appeals’ prior decision reversing the Trial court’s original dismissal of the case, and affirmed the Trial court’s dismissal.

What this means is that a marijuana user who ONLY has Carboxy-THC (or any other non-impairing marijuana metabolite) in his/her system, cannot be prosecuted for an (A)(3) Drug-DUI, and the State would be hard-pressed to convict on an (A)(1) (impaired to the slightest degree) as well.

Medical Marijuana: Between the States

By Cary L. Lackey of The Law Office of Cary L. Lackey, P.C. posted on Thursday, July 24, 2014.

With apologies to the Isley Brothers, much has been written, separately, about the medical marijuana laws in Arizona, California, NevadaOregon, Washington, and Colorado, but less about what happens when a medical marijuana card holder with an amount of medical marijuana in his or her possession from one state, is found in possession of that marijuana in another state (between the states, or sheets, if you will…)

Very recently, I had this exact issue arise in a case of mine.  My client, a valid medical marijuana card holder from California, was a passenger in a vehicle that was stopped in metropolitan Phoenix, Arizona for speeding. During the officer’s investigation, he contacted my client, and during the course of the conversation, my client admitted to possessing a small amount of medical marijuana that he had purchased in his home state. The officer, apparently not understanding the Full Faith and Credit Clause of the United States Constitution, subsequently arrested my client for Possession of Marijuana, a felony under Arizona law.

Interestingly enough, the authors of Arizona’s medical marijuana statute must have contemplated such issues arising, as A.R.S. section 36-2804.03(C) states:

A registry identification card, or its equivalent, that is issued under the laws of another state . . . that allows a visiting qualifying patient to possess or use marijuana for medical purposes in the jurisdiction of issuance has the same force and effect when held by a visting qualifying patient as a registry indentification card issued by the department, except that a visiting qualifying patient is not authorized to obtain marijuana from a nonprofit medical marijuana dispensary.

Since my client had a valid, California issued medical marijuana card, and he did not obtain the marijuana from an Arizona nonprofit dispensary, we were able to get the possession case dismissed in its entirety.

The moral of this story is to make sure that you have a valid, up-to-date medical marijuana card in your possession at all times when you travel to or through Arizona, and that the medical marijuana you carry is identifiable as being from your home state.  As can be seen from my client’s unfortunate experience, you could still be subject to arrest from an uninformed police officer, but you can mitigate the damages such an experience presents by hiring an experienced, Arizona-licensed criminal defense attorney who is familiar with Arizona’s medical marijuana laws to help you.