Medical Marijuana in Arizona: It’s Not Easy Being Green (or is it)

medical marijuana in arizonaIntroduction to Medical Marijuana in Arizona

Since 2010, citizens of Arizona who qualify can enjoy the varied benefits of medical marijuana.
There are dozens of dispensaries around the valley, which provide medicine for people who have secured a medical marijuana card.  These can be obtained either from one’s primary care physician, or from a doctor who specializes in giving out medical marijuana referrals.  However, rules and laws are complicated in certain circumstances, and a dose of clarity may provide protection in a case of unfortunate interpretation.

The Qualifying Conditions:

The following are the official qualifying conditions under Arizona law:

-Cancer

-Glaucoma

-Human Immunodeficiency Virus (HIV)

-Acquired Immune Deficiency Syndrome (AIDS)

-Hepatitis C

-Amyotrophic Lateral Sclerosis (ALS)

-Crohn’s disease

-Agitation of Alzheimer’s disease

-A chronic or debilitating disease, medical condition or the treatment that causes:

  1. Cachexia or wasting syndrome;
  2. Severe and chronic pain;
  3. Severe nausea; Seizures, including those characteristic of epilepsy;
  4. Severe or persistent muscle spasms, including those characteristic of multiple sclerosis

qualifying conditions for medical marijuana in arizona

Marijuana is still considered a Class 1 substance under federal law, so doctors still cannot “prescribe” marijuana, even in medical states.  Instead, they “recommend” or “certify” that this patient would benefit from medical marijuana.  There have been very few instances where doctors have been litigated for medical marijuana, since in medical states, lawmakers have essentially requested that lawyers do not pursue litigation in this realm.  Some of the only recorded suits regarding medical marijuana are examples of medical malpractice, where in one instance a doctor certified a twenty year old girl without an examination, and in another certified a woman who was twenty-eight weeks pregnant.

Another consideration is the common practice of “100 percent approval,” even outside of the official list of conditions above.  The lack of stringency in the list of conditions is not unique to Arizona; in fact, in California, obtaining a medical marijuana card is even easier, with pseudo storefronts set up along beaches to quickly certify anyone and everyone.  In Arizona, and several other states which allow medical marijuana, “marijuana doctors” can circumvent the laws by asking certain leading questions, and by not requiring documentation for claimed conditions.

Because these laws are so new, there is very little in written law which regulates this industry in any meaningful way.  So, as of now, it seems there is very little risk in participating either from a patient or doctor/provider perspective.  Although there are several medical states where the list of qualifying conditions is treated more strictly, Arizona does not seem to be one of those states.  Without listing names, there are several certification centers online which blatantly advertise their “100 percent approval” method.  Although lawyers may be able to sue based on the qualifying conditions list, it seems unlikely in a society which is slowly overcoming the stigma surrounding marijuana built up over the years.

If You Decide to obtain a Medical Marijuana Card:

Under the qualifying conditions, you may decide that medical marijuana is for you.  There are several costs associated with obtaining a medical marijuana card, varying based on who you see and what conditions you have.  However, in the realm of criminal defense, medical marijuana laws become relevant once you have been certified by a doctor.

After you have been successfully certified:

Once you have been certified, you will not immediately receive your plastic medical marijuana card.  The AZ DHS, or the Arizona Department of Health Services, will take about two weeks to place you in the system and mail you the official card.  Without the official card, most dispensaries will not allow you entry.  Technically, before you are put in the system, you are not certified to purchase marijuana.  However, after you visit the doctor, they will likely give you a paper receipt which will allow you access to certain “patient to patient” networks.   These are not state-licensed dispensaries, but will provide you with medication during the waiting period.  These services fall under one of two classifications: Designated Caregivers or Non-Profit Medical Marijuana Dispensaries.  It is difficult to identify this designation online, so it may be in your best interest to ask your doctor where these “pseudo dispensaries” are nearby to guarantee you are legal until your card arrives.

card for medical marijuana in arizonaMoreover, the laws surrounding these “patient to patient” networks are far vaguer than those surrounding state-licensed dispensaries.  Without a medical marijuana card, one cannot legally buy marijuana.  Thus, the “patient to patient” dispensaries call the cost a “donation,” where the employees cannot touch the money, but instead have to hand patients an envelope to place in a drop-box.

This same vagueness is associated with another popular form of medical marijuana distribution- delivery services.  Although medical marijuana delivery is “legal” under Arizona law, its use is met with speculation.  How controlled can a marijuana delivery service really be?  How often do these delivery services ignore certification laws?  Although many cities have banned delivery services for this very reason, Arizona has not implemented any such laws.  As a medical marijuana patient trying to follow the laws, you should have no reservations in ordering from a medical delivery service.  In fact, many delivery services have rules similar to “patient to patient networks,” only requiring paper receipts.

However, if you do not have a medical marijuana card or a paper receipt, you should not attempt to contact these delivery services.  You may think that they operate under the radar, but most consider themselves just as official as storefront dispensaries.  In fact, many are state-licensed, and will not even accept the paper receipt during the waiting period.  If you find a service which is willing to deliver without a picture of either your medical marijuana card or doctor’s receipt, you should be very wary of its legitimacy.  If it is on an unofficial site such as craigslist, you should consider that any posting could and probably is either a financial scam, or a police sting.  In short, the number one rule is: get certified, and do not take risks.   For more information about getting certified see the Arizona Department of Health Services website.

Consumption and Possession of Medical Marijuana:

The laws surrounding consumption and possession of medical marijuana are fairly straight-forward in most instances.  In regard to possession, a qualifying patient may purchase and possess up to 2.5 ounces of marijuana every two weeks.  For those who are not familiar, this is a large amount of cannabis, but not large enough to allow for illegal distribution.  This, in practice, stops the potential for medical marijuana patients to sell to others in any significant way.  However, because medical marijuana is still such a budding industry (no pun intended), there is no guarantee that dispensaries will keep track of this number, since it is in their best financial interest to not do so.

Yet, simply because a dispensary will sell you more than 2.5 ounces does not mean you should buy that much.  If a police officer finds you in possession of more than 2.5 ounces, they have the legal right to arrest you.  The penalty will likely not be as harsh as possession without a medical marijuana card, but it still implies the desire to sell.  Outside of purchasing marijuana, you may grow up to 12 plants in your home, and you can even become a certified caregiver, which means you can sell marijuana to other qualified patients.  However, in no situation can you sell, or give, your medical marijuana to somebody who is not a qualified medical marijuana patient.

Medical marijuana patients cannot consume medical marijuana in any public facility or public area, unless it is being consumed orally in the form of “edibles.”  Edibles are any form of orally ingested cannabis, and can range from cannabis pills to cannabis brownies made from infusing marijuana in oil or butter.

Although any medical marijuana patient can use marijuana in an owned home, the laws become a bit more complicated in an apartment building.  In the state of Arizona, many apartment communities include a Crime Free addendum to rental agreements which follow federal law, not the laws of the state.  Thus, even if someone is certified under the AZ Department of Health Services, certain communities can still kick you and void your lease for smoking marijuana on the premises.  However, it is hard to know whether any of these laws would actually be enforced in practice, since the contradiction between state and federal law is so pronounced in the realm of medical marijuana.

Employer and DUI Considerations:

Laws relevant to DUI:

When considering how the medical marijuana laws are relevant to both transportation and employment, one over-arching consideration must be stated: the machinery and procedures to determine cannabis intoxication are incredibly unreliable, and sometimes even misleading.  THC, the psychoactive component of cannabis, can remain in one’s bloodstream for 30 days, and in the hair for several months.  Also, unlike a breathalyzer, these tests have trouble determining the amount of THC in someone’s system, and instead are largely constrained to simply determining the presence of THC.  Because this presence is in no way linked to intoxication, and can appear many days after consuming cannabis, the laws surrounding litigation are very loosely legitimate.

dui for medical marijuana in arizona

Instances in Arizona of this were brought forward by DUI attorney Craig Rosenstein in 2014, who stated that because there is no reliable procedure to determine intoxication, there are cancer patients who are being accused of driving high days after using cannabis.  Moreover, Rosenstein illuminated a loophole in the law which does not allow the courts to acknowledge the defendant as a medical marijuana patient.  This creates the appearance of illegality in the consumption of cannabis, and thus makes the defense more difficult.  Thankfully, as of November 2015, the Supreme Court of Arizona changed the law so that defendants may use their cards as defense during trial.  However, this does not make the medical marijuana card a Monopoly “get out of jail free” card.  From a “preponderance,” or majority of the evidence, it must be determined that the metabolite level tested must be at a level below that which can cause impairment.  Because the Arizona Courts have not created a standard for this amount similar to the 0.08 Blood Alcohol Level, the law is essentially still in flux.  The best advice would be to not operate a vehicle inebriated, or within a certain time-frame after consuming cannabis.  However, with laws the way they are as of November, you can feel safer in court in the case of a cannabis DUI charge, since judges are now made aware of the defendant’s medical status.

The employee/employer relationship in regard to cannabis use is far simpler.  Under Arizona law, an employer cannot punish a Medical Marijuana patient for a positive marijuana drug test, unless the employer can prove the use of or impairment by marijuana on the business’ premises.  In short, the laws surrounding employee medical marijuana rights are very intuitive: Do not get high at work or for work.  An employer could likely prove their point in court if there were physical indications of use, including red eyes, smell, goofy behavior, etc, but cannot do so simply based on a drug test.

While there is quite a bit of ambiguity in the books, Arizona laws on medical marijuana are fairly lenient.  Relegate your use to outside of work, in a private space, and do not operate a motor vehicle while still feeling the effects, and you should avoid litigation in a state which may approve recreational use by the end of the year.

Interested in learning more about medical marijuana laws in the state of Arizona?  We’d love to hear from you!  Comment below or reach out to us on our social media channels.  If you need legal help regarding medical marijuana criminal defense, contact an experienced Phoenix defense attorney today.