PHOENIX, AZ (3TV/CBS5) -- In a case with vast implications for Arizona’s medical marijuana industry and patients, the Arizona Supreme Court heard oral arguments Tuesday on whether cardholders who use marijuana extracts like oils, vape pens and edibles are protected from criminal prosecution.
On Monday, a Yavapai County prosecutor told justices that voters never intended to legalize marijuana extracts when they voted to approve medical marijuana use in the state in 2010.
He said the “plain language” of the Arizona Medical Marijuana Act makes voters’ intent clear because the act only references the word “marijuana” – not the word “cannabis.”
“The people, when they enacted the AMMA, understood that cannabis and marijuana had a separate history of legal interpretation,” Yavapai Deputy County Attorney Benjamin Kreutzberg told the justices.
“How do we know that?” asked Justice John Pelander.
Under criminal statutes that existed before AMMA, marijuana and cannabis are defined differently. Arizona criminal statutes define “marijuana” as the leafy plant and “cannabis” as the resin extracted from it. Kreutzberg argued those pre-existing criminal definitions should apply to the act.
“It doesn't jive with science. It just makes an arbitrary distinction between the leafy marijuana and extracted marijuana,” said Jared Keenan, an attorney with ACLU of Arizona which filed an amicus brief in the case.
“It would be like saying that possessing an orange is protected but its juice is not,” he added.
Attorneys representing patients argue that marijuana and cannabis are synonyms under the act, with equal protection.
“You look to how the drafters of AMMA defined marijuana as ‘all parts’ of the plant,” said attorney Robert Mandel, who is leading the case. “The inference is that they encompassed every part of the plant, including the part that has the medicines, which is the resin.”
Mandel represents a cardholder named Rodney Jones who was arrested and convicted for having .05 ounces of hashish, which is the resin extracted from the marijuana plant. Jones bought the hashish from a licensed dispensary.
An appeals court ruled 2-1 in favor of upholding Jones’ sentence last year.
Following that appeals court ruling last year, prosecutors in some counties have brought felony charges against cardholders for possessing products sold daily at licensed dispensaries across the state.
The executive director of Arizona NORML said he was personally aware of at least two dozen such cases. An attorney with NORML said he was representing in Yavapai, Pima and Navajo counties.
“My medicine, my life and the lives of those who are going to come after me are at stake,” said Michelle Westenfield, a medical marijuana patient who attended the hearing.
According to some estimates, extracts account for nearly half of the sales at Arizona dispensaries. Because they can be highly concentrated, they are particularly popular with the most ill patients.
Beth Vanderwagen, 26, said she uses extracts to treat her cancer and seizures.
“I have edibles that you can pop in my mouth while I'm having the seizure and it stops it within seconds. When I'm having a seizure, I can't sit there and smoke a joint,” she said.
Patients with lung disease and children also rely on extracts, said Tom Dean, the legal director of NORML Arizona.
“Do we want four-year-olds to have to smoke marijuana, or put a couple drops of tincture under their tongue to alleviate, for example, chronic seizure disorder?” he said.
Yavapai County Attorney Sheila Polk confirmed that her office does have “a few cases for illegal possession of hashish that are pending in court.”
“Last June in State v. Jones, the Arizona Court of Appeals ruled that possession of hashish is illegal and not protected under the AMMA. That is the law unless or until the Arizona Supreme Court overturns the Court of Appeals, a law that I am sworn to uphold,” she said via text message.
There is no timetable for a decision by the Supreme Court but one attorney involved with the case said it will likely take about three months for a ruling.