On March 21, 2014, Judge Katherine Cooper of the Maricopa County Superior Court ruled that Zander Welton, a young child who suffers from seizures, may consumeproducts in any form to treat his medical condition. Actually, Judge Cooper took it at least one step further. She ruled that the Arizona Medical Marijuana Act (“AMMA”) allows medical marijuana to be processed into hashish, extracts, tinctures, waxes, butters, oils and other types of products. Her decision states that the AMMA defines marijuana as “ ‘all parts of any plant of the genus cannabis whether growing or not, and the seeds of such plant.’ A.R.S. § 36-2801(1). It defines ‘[u]sable 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 and does not include the weight of any non-marijuana ingredients combined with marijuana and prepared for consumption as food or drink.’ A.R.S. § 36-2801(15).”
Judge Cooper, one of my favorite judges because she is so smart, further held that the definition of “usable marijuana” does not limit the legal medicine to just the dried flowers. She stated:
I’ve always been a loud mouth. Even as a young boy, my mother would often say, “Someday, that mouth of yours is going to get you in trouble.” Today, as a criminal defense attorney, I use that “mouth of mine” to help get people OUT of trouble. It wasn’t always that way.
Like most other loud mouths, I was always interested in politics. However, like almost all other Boston area Jews, I was surrounded by long time liberal Democrats. Although there may have been a time in my youth when I was in the presence of a Republican, such unpleasantness was always kept from me. I had always been informed that Democrats were “for the people” and Republicans were “for big business.” If there was more to the analysis, I never heard it.
Being most comfortable in the midst of any controversy, I think my youthful pronouncement that I had decided to be a Republican was more of a reaction against the Democrat Party monopoly than a statement of principle. To their credit, my parents informed me that my Republican leanings were OK so long as I did not publicize them in front of the elder generation. I think they believed it was just some crazy phase I was going through. Ultimately, they were correct.
I cringe to think how many times clients come into my office to discuss their criminal matter with me only to learn they have done possibly irreparable damage to their case. I have found few people who are aware of their constitutional rights.
Your awareness of some simple concepts may serve you well in theyou or a loved one is the unfortunate subject of a criminal investigation. First of all, always remember, you are not required to talk to the police. There may be occasions where your persuasive oral skills will serve to get you a stern warning instead of a costly ticket; however, talking with the police will rarely benefit you when the investigation is for a crime.
In addition, talking to friends and family about your criminal matter is usually not a good idea either. Although you do not expect a friend or family member to compromise your case, you may put him or her in an unfair position. A prosecutor may summon your family member or friend to the witness stand in a criminal trial and ask questions about your statements. Such a dilemma will force your family member or friend to decide between perjury and possibly hurting your case.
Don’t get caught up by the fact that the police officer
In libertarian and other pro-freedom circles, one of the unquestioned and most beloved holy scriptures is Mr. Jefferson’s oft quoted observation, “When the people fear the government, there is tyranny. When the government fears the people, there is liberty.” For years, I have cited this quotation like it was a given fact. Although I suspect some disagree, I don’t recall anyone taking issue with the “wisdom” of this particular observation. However, I have come to realize Mr. Jefferson was wrong on this point.
With full knowledge of engaging in libertarian heresy, and with all due respect to Mr. Jefferson, I will endeavor to correct Mr. Jefferson’s observation by recasting his quotation thusly, “In order for a free and just society to both arise and be maintained, there must be an equilibrium of mutual peace and respect between the people and the government.” Given how far away we currently are from a free and just society, it is hard to imagine a set of circumstances where there could exist a mutual peace and respect between the people and the government.
Indeed, our government today is such a routine and massive violator of peace and freedom concepts that we can barely imagine a situation where principled people, who revere peace and freedom, would actually respect the government. Further, we can hardly imagine a situation where the government actually respects and serves the people and truly advances the cause of peace and freedom. If we are ever going to realize and sustain a free and peaceful society, we cannot be so jaded by the sad history and current reality of government that we cannot envision what is necessary to bring about the society we so desire.
On July 2, 2012, the jury returned a verdict of NOT GUILTY in favor of my client who transported 83lbs of marijuana in her mini-van from Douglas, Arizona to the Phoenix area. She was relieved and overjoyed. I was overjoyed too, but left wondering how many like her are living in cages for unknowingly driving a relatively harmless plant destined for adults who want it. The outrageous aspects of this case are too numerous to describe in one article. However, one point is clear; so long as the Drug War persists, no person is safe.
On July 19, 2010, fifty-three year old Maria Carillo-Tremillo was traveling with her autistic daughter from Douglas, Arizona to Phoenix. She was expecting to meet a woman who would assist her in purchasing used clothing from various locations to resell in Mexico at a modest profit. Her mini-van was pulled over by an officer for allegedly following too closely. The officer did not see or detect any odor of marijuana. After issuing Maria a warning, the officer commenced a conversation with Maria in English despite knowing Spanish was her primary language. After advising her of her right to refuse, the officer asked and immediately received unrestricted consent from Maria to search her mini-van.
A drug interdiction dog was immediately deployed. The officer claims the
Arizona attorney and marijuana legalization advocate Marc Victor debates Maricopa County attorney Bill Montgomery at Arizona State University in this entertaining video. Marc Victor represents people charged with drug crimes, DUI, and more. While Bill Montgomery continually spends his time (and taxpayer money) trying to overturn Arizona’s voter-approved medical marijuana laws; which is the opposite of his job description of enforcing and representing the law.
Arizona has an initiative process whereby citizens can get a proposition on the ballot for voters to approve. If the citizens approve the proposition, it becomes law. Elected officials are allegedly elected to “serve the people” they represent. It sounds great! However, in practice, things aren’t always as they appear.
When it comes to marijuana, some of our elected officials are confused about who they represent. When proposition 200 was passed in 1996, it deleted the prison option for first time marijuana users and mandated drug counseling instead. Despite the obvious common sense in the voter-approved initiative, the Arizona legislature effectively invalidated it. The voters had to effectively pass it again. Despite the drug war apologists’ warnings, the sky didn’t fall. Indeed, it has been good for Arizona, and it was a small step in the right direction.
This time, Arizona voters have approved medical marijuana. Despite this fact, it seems both Arizona Governor Jan Brewer and Maricopa County Attorney Bill Montgomery are doing everything they can to thwart the will of the very people they were elected to represent. Both of these elected officials, who have each loudly voiced their personal support for the failed war on drugs, have run to the courts in an attempt to apparently enforce their personal views rather than represent the will of the people.
Despite the will of the voters,
A recent article in Phoenix New Times by Ray Stern has caused quite a stir and a great deal of anxiety in Arizona. This is because, according to Maricopa County Attorney Bill Montgomery, “Arizona has a zero tolerance, when it comes to driving and marijuana and driving and drugs.”
In support of his opinion, Mr. Montgomery cites the recent Arizona Court of Appeals decision, State ex rel. Montgomery v. Harris, decided on February 12, 2013. In that controversy, a gentlemen named Hrach Shilgevorkyan was stopped for driving while under the influence. He had not been drinking, but a blood test revealed that he had an 8 nanograms/ml of blood level of Hydroxy-or “active THC” in his system. Before the passage of the AMMA, it was illegal for anyone to drive “while there is any illegal drug or metabolite of an illegal drug in your system.
However, under the Arizona criminal code
As the lead attorney for White Mountain Health Center, a dispensary to be located in Sun City, Arizona, I am overjoyed to be able to write this article and confirm that Maricopa County Superior Court Judge Michael Gordon has ruled that the Arizona Medical Marijuana Act is valid, enforceable and not preempted by federal law! This is welcome news for all medical marijuana patients, caregivers and professionals in the State of Arizona and elsewhere. Even though we expect Defendants Maricopa County (Bill Montgomery, County Attorney) and the State of Arizona (Tom Horne, Attorney General) to appeal Judge Gordon’s ruling, I believe that a considerable number of dispensaries will open in the very near future.
Judge Gordon rejected all of the government’s arguments that the AMMA and the Federal Controlled Substances Act cannot co-exist. Even though the feds can enforce the CSA, if they choose to do so, the federal government, at least in my opinion, has not prosecuted people who are in full compliance with state medical marijuana laws. Despite rumors to the contrary, every prosecution that I know of in medical marijuana states involves conduct that violated state law, as well as the CSA. For example, some dispensaries in California were shut down because they failed to obtain building permits and some collectives and others simple had more plants than allowed by state law.
Kudos to Judge Gordon for specifically ruling that: “Thus in the final analysis, the Court finds that federal law does not preempt the AMMA. In so doing, the Court notes that Arizona, if it had wished to do so, could have fully decriminalized the possession, use and sale of marijuana under State law. In its wisdom Arizona [obviously referring to our voters and not to our elected officials] took a far narrower and deliberative course opting to allow only the chronically ill access to it and only after a licensed physician certified that it might well relieve its citizens of suffering.”
I realize that the White Mountain v. County of Maricopa decision hastens the day when many, if not most caregivers’ and patient’s ability to grow their own medicine will probably come to an end. Skilled, medible, tincture and other crafters of these great products face similar restrictions in the near future. I don’t know if there is a way to accommodate the desires of every caregiver, patient and mmj professional under the current law which favors dispensaries, but I welcome the continuing opportunity to be able to work on these issues, as well as to continue to advise dispensary certificate holders, caregivers, patients and other professionals. This would not have been possible without Judge Gordon holding that the AMMA is not preempted by federal law.
The text of Judge Gordon’s December 4, 2012 decision is available on my website, www.jeffkaufmanlaw.com. Click on the “Resources” tab. Then click again under the heading Medical Marijuana News.
Always put your agreements in writing and please carry your card.
JEFFREY S. KAUFMAN, LTD.
Attorney at Law
5725 North Scottsdale Road, Suite 190
Scottsdale, Arizona 85250
(480) 994-8129 (fax)
Editorial: What is Going on with the White Mountain Health Center Case and When Will the Dispensaries Actually Open?
Last Friday, October 19, 2012, Maricopa County Superior Court Judge Michael Gordon heard arguments made by Maricopa County Attorney William Montgomery (himself) and by Deputy Attorney General Charles Grube, for Tom Horne, challenging the viability of the Arizona Medical Marijuana Act. An explanation of how we got to this point can be found in my editorial entitled: The Most Important Medical Marijuana Lawsuit in Recent History?
Judge Gordon, my co-counsel Ezekiel Edwards of the ACLU, and even thechallenging the law and me were all well-prepared. Judge Gordon asked each attorney a number of pointed questions, directed at the potential weaknesses and effects of their respective positions. At the conclusion of the hearing, Judge Gordon “took the matter under advisement.” This is a fancy way of saying the he was unwilling to rule on the spot. He stated that he wanted to re-read some of the cases that had been cited by the parties, as allegedly-important and controlling precedent. They may guide or even dictate how the judge will rule. Without divulging the potential weaknesses in White Mountain’s and most of the people reading this article’s position, the gist of the government’s claim is that marijuana, in every manner whatsoever including growing and possession by cardholding patients and caregivers, is absolutely illegal under federal law; and that federal law “trumps” (controls over, for you non-bridge players) state law. They insist that, since marijuana is a Class 1, Controlled Substance, with no “proven” medical uses whatsoever, just like heroin, it cannot even be legally prescribed or recommended for use by doctors or by anyone else.
Naturally, we argued that there are numerous reasons why no court has stopped 16 states and the District of Columbia. Like Arizona, they have partially decriminalized cannabis possession by authorized patients, caregivers, cultivators and various types of legal distributors, pursuant to state law. We cited cases. One of them, Garden Grove v. Superior Court of Orange County, even held that the police had to return marijuana that was unlawfully confiscated by the police from a cardholder during a traffic stop. The United States Supreme Court declined to reconsider the decision of the California Court of Appeal. We reminded Judge Gordon that the feds can still enforce federal law and that the state cannot enforce federal law. We urged Judge Gordon to give due weight to the fact that the AMMA is a voter initiative, rather than merely a bill that was passed by the legislature. Other technical issues were raised.
In response, Mr. Montgomery actually argued that it would have been fine for the voters to totally decriminalize marijuana, rather than just making it available to sick people, who need and benefit from its pain and nausea relieving and other beneficial properties. He claimed that his office could deal with total legalization of cannabis because it didn’t require government participation to aid the possession and use of marijuana by issuing cards, building permits, etc. (The last time we passed a decriminalization statute it was struck down because it required doctors to write “prescriptions” for the harmless weed and that the Controlled Substances Act did not allow prescriptions to be written for Schedule 1 substances.)
Despite the best efforts of the government, I believe that Judge Gordon will rule in November that the AMMA is valid, enforceable and not preempted by federal law. I do not think that Judge Gordon bought into the argument that total legalization of cannabis in Arizona is permissible, but that partial decriminalization is prohibited. Judge Gordon is unlikely to invalidate a state statute, especially one passed by the public, rather than the legislature.
If all goes according to plan, dispensaries will be open by the end of the year. There is at least one in Tucson that has already been constructed. It is just waiting for DHS inspection which can take up to 90 days. Maricopa County and perhaps other defendants will appeal. An appeal will take about one year, but I believe that the AMMA will be enforced, rather than quashed or enjoined during the appeal process. Obviously, this is a good thing for us. I also believe that no appellate court will invalidate the AMMA.
If you have any questions, you can contact me by Googleing Jeffrey S Kaufman Ltd, Scottsdale medical marijuanaor www.jeffkaufmanlaw.com. I will try to respond to all, depending upon the volume.
Remember to always carry your card.
Jeff Kaufman has more than 30 years of experience in Arizona. His practice encompasses the fields of real estate, business, corporate, private offerings and personal injury. You can reach Jeff at Jeff@KaufmanEsq.com or (480) 994-8000.
Jeffrey S. Kaufman, Esq.
Attorney at Law
5725 North Scottsdale Road, Suite 190
Scottsdale, AZ 85250
(480) 994-8129 fax