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 “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:
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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.
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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.
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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.