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Medical Marijuana Is Under Attack in Arizona Again --
But This Time, Voters and Patients Hold the High Ground
Return To OnlinePot's
Legal Section Main Page
By Ray Stern
published: July 14, 2011
One of the defining moments of the latest war on medical marijuana
in Arizona came last month when Gilbert SWAT officers raided the home of a
patient suspected of having a single ounce of weed.
Ross Taylor's not only a bona fide, card-holding patient under the law, he also
is the owner of the Cannabis Screening Centers, a business that hooks up people
with doctors willing to recommend the use of marijuana.
Arizona's medical-marijuana law takes effect today
April 14th 2011
He's a marijuana advocate, and he's a professional in what, since November, has been a legal
industry. In April, he spoke about his business before the Gilbert Planning and
Zoning Department. On June 9, he was in the process of moving into his new home
in south Gilbert, near Higley and Riggs roads. He'd taken title to the home a
day earlier; online records show that it was sold on June 8 for $262,200.
Before his movers came, a DIRECTV installer had been setting up a satellite
connection in an upstairs bedroom. While doing his work in the room's closet,
the installer happened to see baggies of pot in two jars. After he finished the
job, the installer called Gilbert police.
About 6:30 p.m., 11 police officers in masks and riot gear gathered outside the
home.
This well-armed team of anti-dope crusaders carried a warrant signed by Highland
Justice of the Peace Dan Dodge. The warrant shows police were investigating
nothing more serious than a possession case, and the suspected amount of marijuana held by Taylor isn't specified.
Police later said they were concerned that Taylor had an ounce of marijuana in
his home. JP Dodge was never told that Taylor was legally allowed to possess up
to 2.5 ounces of marijuana under the voter-approved Arizona Medical Marijuana
Act.
Despite the new law, Arizona still is one of the few states in which possession
of any amount of marijuana (unless you have a patient-registration card handy)
is considered a felony. By all appearances, this was a major felony bust.
The cops cut the power and water, presumably to prevent any contraband from
going down the toilet or garbage disposal, then pounded on the door and yelled
for someone to open up. Taylor did so, and nine of the officers stormed into his
new home. Two others waited outside, watching the front and back yards.
Some of the members of Gilbert's Special
Investigations unit and SWAT-trained Criminal
Apprehension Team were wearing masks and carrying shields. They displayed
handguns, rifles, and shotguns in the "ready" position as they
entered, according to a police report.
"They started screaming, 'Search warrant!'" Taylor tells New Times.
"They said to turn around and walk toward the door.
"Luckily," he adds, "my son, who's 2 1/2, wasn't there."
The police report states that four men and a woman were taken out of the house.
Another "disabled" woman on the second floor would have been a problem
to remove from the home, so she was allowed to stay inside.
The report doesn't mention, however, that three of the men extracted from the
home were from the All My Sons moving company.
Kevin Anderson, the company's local branch manager, confirms that the officers
put the movers in handcuffs along with Taylor and his wife and detained them all
for about an hour while a search of the home was conducted.
The police
report, authored by Gilbert Detective Craig Avery, states that the bust was in
"reference [to] an ongoing narcotics investigation" and that Avery was
told by Sergeant Benny Fisher about Taylor's "making comments about selling
marijuana."
As New Times reported in a June 16 Valley Fever blog post before the July 1
release of the police report, Sergeant Bill Balafas, the police department's
spokesman, said the reason for the raid was that the Gilbert PD had received a
tip that the homeowner was in possession of about an ounce of marijuana.
http://blogs.phoenixnewtimes.com/valleyfever/2011/06/june_16_in_blogs_john_huppenth.php
Balafas told the East Valley Tribune for a June 17 article that "the
satellite worker who reported the possession told investigators that Taylor said
he was selling the marijuana."
Taylor says an officer asked him whether he was dealing weed, and he denied it,
though that exchange isn't mentioned in the report. Nothing else in the report
supports the accusation, and police didn't state a word about it in the search warrant they requested from JP Dodge.
A spokesman at DIRECTV's headquarters assured
New Times that he would check on the story of the snitching satellite installer
and call back, but he never did.
Taylor recalls how the installer mentioned the marijuana he'd spotted in the
closet.
"It's okay," Taylor says he told the man. "I'm a
medical-marijuana patient, and I've got a card."
Naturally, Taylor says, he produced his card — which contains his photograph.
He says one of the raiding officers, a guy in a ski mask, told him, "I
don't know even know if you're supposed to have this card."
The officer, Taylor says, referred to the lawsuit filed in federal court against
the state's medical-marijuana law six weeks ago by Arizona Governor Jan Brewer
and state Attorney General Tom Horne.
Marijuana Advocates Sue Feds After DEA Rejects Weed as Medicine
For all their intense efforts, the raiding party found about two ounces of pot
in Taylor's closet, "a small chunk of hashish," and some pipes. Taylor readily admitted the stuff was his. After
all, it weighed less than the statutory limit for cardholders.
Arizona's medical-marijuana law takes effect today
Taylor's card, one of thousands issued by the state Department of Health
Services since April 14, was valid on the day of the raid. In the search warrant
signed by the JP, Detective Avery lists the training he's undergone as a
narcotics officer — noticeably missing is any training on the new
medical-marijuana law. Police later called the DHS — not a prosecutor's office
— and asked an employee how the suspect could have legally obtained the
marijuana. At least, that's what Avery's report states. A DHS official could not
confirm this part of the story.
Gilbert Police Chief Tim Dorn refused repeated requests for an interview. He's
made his spokesman, Balafas, do all the talking. And judging from what Balafas
says, Dorn and his department either are confused about what the law says.
Or the Gilbert PD has gone rogue.
Proposition 203 was approved by Arizona voters in November and is now the law of
the land. Yet for the second time since 1996, attempts to legalize medical
marijuana by the voters of Arizona are getting thwarted.
Recent decisions by Governor Brewer and
Attorney General Horne have effectively ended what had been, until May, a
peaceful rollout of a law passed by the initiative process.
Marijuana Advocates Sue Feds After DEA Rejects Weed as Medicine
Applications for dispensaries, the marijuana stores where patients legally would
buy their "medicine," were supposed to have begun being taken by the
Department of Health Services on June 1. The law allows 124 dispensaries
statewide, a figure based on a percentage of the state's pharmacies. As New
Times explored in a February 3 article about the then-budding dispensary
business ("Pot of Gold"), investors, entrepreneurs, and a wide range
of professional- service providers were lining up for a chance to be on the
ground floor of a hoped-for billion-dollar industry. It appeared that nearly every one of the
124 geographically dispersed slots offered by the DHS would be home to a
dispensary.
Given that many cities across the Valley have approved zoning applications for
some of these planned businesses in the past few weeks, it's possible that some
of the stores would have been opened by now. Since the bulk of the dispensaries'
products would have been grown in the state by licensed cultivators (the
exception being that qualified patients could legally donate weed at no charge
to the dispensaries) , DHS officials had predicted that the stores would be open
by this fall.
A slim majority — but still a majority — of Arizona voters said
"yes" in November's election to the idea of medicinal marijuana and
pot stores for patients.
But because Brewer and Horne say "no," the stores are now on hold —
indefinitely. On May 27, the two Republican leaders filed suit in U.S. District Court in Phoenix as plaintiffs against the new statute, asking for
a declaratory judgment on whether it is legal under federal law.
Marijuana Advocates Sue Feds After DEA Rejects Weed as Medicine
They say they're worried about the potential liability to state employees who
would administer the program and process dispensary licenses.
They claim that because of this alleged risk, a "time-out" is needed
for the industry, which would bring thousands of new jobs to economically
depressed Arizona. Just days before excited entrepreneurs were to begin
submitting their dispensary applications, Brewer ordered the DHS to reject
applications for dispensaries.
First AZ application for medical pot dispensary rejected due to federal DOJ lawsuit
The farcical element here is that the governor
and state attorney general know full well that the Arizona Medical Marijuana Act
authorizes activity that is now illegal under federal law. Federal judges are
unlikely to say otherwise, if they say anything at all.
Brewer and Horne are siding against Arizona voters, citing federal law
enforcement' s warning signals to upstart states with medical-marijuana laws.
Sixteen states and Washington, D.C., have now legalized the medical use of
marijuana. In more than half of these states, including in Arizona, voters
approved medical marijuana directly at the ballot box.
But as commercial marijuana operations have grown in accordance with state laws,
the Justice Department has pushed back. Starting in February, U.S. Attorneys in
these states began sending threat-letters to state officials. President Barack
Obama's administration warned that nearly anyone involved with distributing,
selling, or growing marijuana faces potential prosecution and/or asset
forfeiture, despite state laws to the contrary.
With another 10 states considering medical marijuana, the nation's medical-pot
industry has become a states' rights issue.
Though they are rejecting the "will of the people" when it comes to
medical marijuana, Brewer and Horne firmly are behind voters' wishes when it suits their political needs. For
example, they are spending hundreds of thousands of tax dollars on the legal
defense of voter-approved anti-illegal- immigrant legislation such as Senate
Bill 1070 and Proposition 200, which requires (among other things) proof of
citizenship before individuals can register to vote. (Horne argued personally in
favor of Prop 200 before the Ninth U.S. Circuit Court of Appeals last month.)
Brewer and Horne aren't spending a dime to defend the Arizona Medical Marijuana
Act, of course. Staunch conservatives, they made their ill feelings toward the
law apparent before voters approved it. Indeed, they're spending public money to
fight what state voters want.
Brewer, through her spokesman, claims she first considered the idea of the
lawsuit and the rejection of dispensary applications following a May 2 warning
letter to the DHS by Arizona U.S. Attorney Dennis Burke.
But as this article will detail, the
governor's staff and AG Horne considered the actions well before then. And they
took their cues, in part, from Keep AZ Drug Free — the political group that
campaigned unsuccessfully against the law last year.
State residents who have lived here for a while may be experiencing déjà vu
watching their leaders go against what voters have approved. In 1996, voters
passed the state's first medical-marijuana law by a 2-1 margin. Lawmakers gutted
the law by passing legislation that put its provisions on hold. Voters struck
back two years later by passing the law again at roughly the same margin, but
that law also ran into difficulties. To keep the state Legislature from
tinkering with any part of a legally approved initiative, voters then approved
the Voter Protection Act.
This forced anti-marijuana crusaders to take a different tack this time — the
governor and AG's federal lawsuit.
Still, all of the state's Marijuana Act hasn't been canceled or put on hold by
the top state officials' actions. Unlike the 1996 and 1998 pot laws, this one
has teeth.
Under the older laws, a doctor had to prescribe marijuana. But the federal
prescription program is overseen by the DEA, which threatened to pull
drug-prescribing powers from any doctor who dared authorize pot for a patient.
The new law relies on a more casual recommendation from doctors instead of
prescriptions. More importantly, the Arizona law has a self-enacting clause.
Had Brewer ordered the DHS to stop taking applications for patients, the clause
would have been triggered. This would have meant that anyone eligible to obtain
a doctor's recommendation for marijuana could grow and possess it legally.
This is why the DHS has continued to accept and process about 100 new
applications a day for patient-registration cards. Ninety-eight percent are getting approved.
The latest DHS stats show that since the first
applications rolled in April 14, more than 6,550 qualified patients have been
allowed to legally possess marijuana under state law, with 75 percent legally
allowed to grow up to 12 plants for their own use. Another 186 registered
"caregivers" can grow up to 12 plants each, for as many as five
patients each.
With the absence of dispensaries, "compassion" clubs — which allow
patients and caregivers to share marijuana with other patients — have opened
across the Valley. For example, the 2811 Club LLC, run by industry marketer
Allan Sobol, collects $75 in "dues" from member-patients each time
they show up and openly touts its for-profit nature. Patients receive up to an
eighth of an ounce of "high-grade" marijuana for "free" as a
membership benefit.
While the top-down, highly bureaucratic system mandated by the new law remains
stalled, Brewer and Horne's actions mean that a medical-marijuana culture is rising from the ground up in Arizona.
Without question, the feds have issued ominous statements about pot businesses
in recent months.
The stance of the Justice Department has surprised some supporters of President
Obama, who stated before and after his 2008 election that he favored marijuana
decriminalization.
In 2008, Obama called it a waste of resources to "have the Justice
Department prosecuting and raiding medical-marijuana users." And after he
became president, his administration put that philosophy into action with the
groundbreaking October 2009 Ogden Memo, which stated that the feds would have a
hands-off approach to medical-marijuana programs that comply with state laws.
The memo kicked such programs into high gear, especially in California and
Colorado. The two states, where growers and distributors already were serving
thousands of state-authorized qualified pot patients in a relatively low-key way, suddenly exploded with highly visible dispensaries.
With the increase in plans for super-size commercial growing and distribution
enterprises, Obama's Justice Department appears to be re-thinking the situation.
Federal officials have issued a new round of warnings. The first was in
California, arguably the most pro-pot state (considering it nearly legalized
marijuana by popular vote in 2010).
The Oakland City Council, in the spirit of
California's freely running medical-marijuana industry, decided in January to
move forward with licenses for pot-cultivation facilities of up to 50,000 square
feet. Nothing that big had been tried openly before, and it's unclear whether
the plan was in accordance with California law. Regardless, the city's leaders
figured it was a great way to bring in millions of tax dollars during bad
economic times.
In a letter dated February 1 and made public a few days later, Northern California U.S Attorney
DOJ Melinda Haag Memo advised Oakland that such
facilities could run afoul of federal law officers, who would
"vigorously" go after people who grew and sold pot, "even if such
activities are permitted under state law."
Even those indirectly involved could be in trouble, she warned: "Others who
knowingly facilitate the actions of the licensees, including property owners,
landlords, and financiers should also know that their conduct violates federal
law."
The Haag Memo kicked off a series of several similar letters from U.S.
Attorneys in the following weeks. One, sent by Washington state's U.S. Attorney
on April 14, mentioned specifically that state workers who participated in a
licensing scheme could be held accountable. Because of that, on April 30,
Washington Governor Christy Gregoire vetoed part of a new medical-pot law that
authorized dispensaries and cultivation facilities.
Arizona U.S. Attorney Burke's May 2 letter to the DHS said nothing about state workers, but it threatened that
the feds might go after "large" pot-growing facilities. He didn't
define what "large" meant.
Coming less than a month before the DHS' planned licensing of pot-growing
operations, on which the state law had placed no size limits, the letter warned
that complying with the state statute gave no one "safe harbor."
Besides the pot-growing and distribution businesses, property owners who leased
space to the businesses could be subject to prosecution or asset seizure based
on federal laws, Burke stated.
Even so, many people are willing to take the risk, noting that the feds have not
tried to close down the hundreds of medical-marijuana businesses supplying
patients nationwide. For instance, the DEA made well-publicized raids of two
West Hollywood, California, dispensaries in March, but two other popular shops
in the same area were untouched and remain open. So far,
raids by federal officials have targeted only businesses that aren't complying
with state laws.
The letters from the U.S. Attorneys to their
states make clear that the Justice Department will not target qualified
marijuana patients. But, paradoxically, businesses supplying these card-holding
patients have been threatened with prosecution.
The Obama administration is waffling, (Sold
Out Is The Better Choice Of Words) but Brewer and Horne certainly aren't.
Despite the lack of federal prosecutions around the country (particularly in
neighboring California, which has a far more liberal law) and the fact that
Burke has suggested his office has no interest in arresting state workers who
process the new Arizona statute, the GOP duo claim in their suit that the law
must be held up to protect state workers.
After Brewer stated publicly that Burke's letter prompted her to file the suit
out of concern for state employees, the U.S. Attorney shot back to local
independent reporter Howie Fischer: "It's fair to read into my letter what I included
and what I didn't. And if I didn't include state employees, I think that's
telling in itself."
Further, Burke told the Arizona Republic after Brewer's announcement that though
he had to point out that no one was immune from federal law, he would not direct
federal law enforcement to target "people who were implementing or were in
compliance with state law."
Between his written and verbal statements, Arizona's U.S. Attorney suggests that
he supports state voters in a way that Brewer and Horne clearly do not.
Carolyn Short's a sharp-minded lawyer who's spent much of her life as a
stay-at-home mom. She's highly motivated and has lots of time on her hands.
She's been a volunteer for anti-drug groups for years and sees the passage of
Prop 203 as a disaster.
Like many marijuana prohibitionists, Short plays fast and loose with the facts.
She's publicly claimed that her stepdaughter is a meth user whose drug addiction began with
marijuana, yet the Christian conservative admitted to New Times before the
election that she keeps alcohol in her fridge and claims she doesn't know
whether her stepdaughter tried booze before pot.
A few days after Brewer and Horne put the
kibosh on Arizona's dispensary system, New Times called the Reefer Madness-style
propagandist on the suspicion that she'd had something to do with it. This
prompted Short to release an eyebrow-raising letter that she'd sent on February
16 to DHS Director Will Humble:
"On January 10, 2011, [former Arizona U.S. Attorney] Paul Charlton and I
met with Attorney General Horne to discuss our conclusion that implementation of
Prop 203 would subject you and other ADHS employees to federal prosecution for
violating the Controlled Substances Act ('CSA').
"AG Horne suggested that he could file a declaratory judgment action,
asking a court to determine whether the implementation of Arizona's law would subject you
and other ADHS employees to the risk of federal prosecution under the CSA."
Arizona Medical Marijuana Law: State Sues U.S. Justice Department
Over US DOJ Medical Marijuana Warning Letters
Short's letter also stated that, two weeks after the January meeting, Horne told
her "he would not file a declaratory judgment action because his 'client,
Will Humble' did not want him to."
Brewer refuses to talk to New Times about this development or about other
aspects of the medical-marijuana law, but her spokesman, Matt Benson, says the
governor never has met Short and isn't working with her to defeat the
voter-approved initiative. Benson says Brewer didn't know about Horne's meeting
with Short, the discussion about a lawsuit, or Horne's subsequent discussion
with Humble on the issue.
Benson claims "it's neither here nor there" that Horne and Short
discussed the lawsuit in January — or that Humble opposed it. Brewer's
decision to allow the program to roll out unhindered until Burke's letter proves there was no pre-planned scheme, he argues.
Yet the state's keeping secrets.
Neither Horne nor Humble will comment on the details of their talks about filing
the lawsuit and halting the dispensary process. Lawyers with the Attorney
General's Office penned a memo that reportedly describes the legal theories
behind these decisions, but the governor won't release it publicly.
Benson claims Brewer wants to maintain her
attorney-client privilege with Horne's office by not releasing the letter.
For her part, Short remains candid about her group's goal to sink the new law
through legal means.
"We did not stop working after the law passed," she says.
Neither did her allies Brewer and Horne.
Arizona's never seen a business quite like the Arizona Compassion Club. The club
operates out of offices in Phoenix, Tempe, and Mesa — and representatives say
more locations are coming soon. In the suite at 2701 East Thomas Road, the strong smell of marijuana greets
visitors.
This is just one of the front lines in Brewer and Horne's war. As it's turning
out, the state leaders' actions have had an unintended consequence: They've
given a boost to caregiver cooperatives and patient clubs, seemingly proving
that the opposition can't really fence in Arizona's marijuana law.
The compassion club on Thomas Road isn't fancy. It's a low-budget, but
professional- looking, place where qualified Arizona patients can obtain pot.
Inside the small waiting area are a few chairs and a flat-screen TV showing
medical-pot- themed videos. A glass panel, covered with posters listing strains
of marijuana and what ailments each strain may be best for treating, separates
another room that's furnished minimally with two folding tables. In this room,
staff members meet with patients to discuss the club's rules and to distribute
marijuana.
The club helps a patient-advocacy group, the Arizona Cannabis Society, distribute
"free" marijuana to patients, as state law apparently allows.
Available medicine includes ready-to-smoke buds, marijuana-infused foods, and
tinctures made from pot plants. Unlike at dispensaries in other states,
marijuana isn't displayed on shelves.
Nick Monte introduces himself as one of the
main staff members at Arizona Compassion Club. He and another club member, Bill
Hayes of the Cannabis Society, explain how the club has managed to stay open
since April without police interference: It all comes down to ARS 36-2811, a
codified portion of the Marijuana Act that prohibits legal prosecution or any
penalties for possession and transfer of less than 2.5 ounces of marijuana
between caregivers or qualified patients. Under the provision, nothing of value
can be transferred in exchange for marijuana.
Members pay a small fee when they join, then make donations that entitle them to receive marijuana from the club. The concept may appear to be a thinly
disguised sales scheme, in that patients often leave the club offices with pot
and less money. However, operators are confident that they're operating within
the legal boundaries of the new law.
"Someone [had] to step up to the plate," Monte says. "There are
plenty of patients out there in need."
Monte and other staff members won't allow anyone without a state registration
card to join the club; they also scrutinize every membership card with a black
light that makes a hidden hologram glow. Hayes says he advised the club to
refuse any patient who didn't appear "100 percent legitimate."
Hayes says, "We work other jobs — we're volunteers [at the club]."
Staff members wear their own state registration cards on lanyards around their
necks, in part as protection in case police barge in. This hasn't happened yet.
Uniformed cops have been in the Thomas Road suite for alarm calls and to see what was going on, Monte says, but they
have taken no action toward shutting down the suite.
The club claims about 700 members who have maladies ranging from cancer to the
most common qualifying ailment, "chronic and severe pain."
Pot-friendly doctors refer patients to the club, and, conveniently, one doctor-recommendati
on business is in an adjoining suite. Monte says the club also receives
referrals from drug-rehabilitation centers, whose clinicians see legal pot as a
way to wean addicts off heroin and other hard drugs.
Without the club, its member patients would
have a harder time getting their marijuana. Now, instead of fueling the black
market or Mexican drug cartels, they're obtaining marijuana that probably was
grown locally. Apparently, some members of the pot club and affiliated advocacy
group started growing marijuana after the law passed but before state
registration cards became available in April. It's questionable whether that early start was legal under the law, but
they believe they have legal cover because Brewer signed the Marijuana Act in
late November.
Sobol, who opened a similar club on July 4, says he "doesn't need to
know" where a separate association that fills his club members' needs gets
its marijuana. But he notes that a caregiver who also is a card-carrying patient
can grow up to 72 plants legally and that might create a lot of
"excess" medicine that can then be legally donated to other patients.
However it arrived, the marijuana is available, and legal patients are helping
themselves to it with or without state-approved dispensaries. Compassion clubs
and caregiver cooperatives, managed by advocates willing to deal with the risks
of federal prosecution, appear to be the wave of the future.
When New Times asked the Phoenix Police Department its thoughts on the new
clubs, spokesman Steve Martos said the PPD has no official opinion but is checking into the Phoenix operations.
Presumably, this means that the department is sending in undercover cops to see
whether the clubs are doing something illegal.
"I'm not worried," Monte says. "We're not doing anything wrong.
We're just trying to provide a service to patients."
As of press time for this article, the Arizona Compassion Club's three locations
and Sobol's club still were open.
At the local level, it remains to be seen how prosecutors will react to the new
law.
Maricopa County Attorney Bill Montgomery opposed Prop 203 strongly during the
initiative's campaign. Jerry Cobb, Montgomery's spokesman, says the office has
handled only a couple of simple cases involving medical-marijuana patients.
In one, a man who'd been busted for possession
in 2009 and never showed up for court was "picked up," he says. This
time, the man had a state-issued registration card. But the
law doesn't "grandfather in" such people, Cobb says, so it didn't
protect him.
Another case involved a man who was arrested and claimed he was an approved
patient but didn't have the card on him. "When he presented the card, the
case was dismissed," Cobb says.
Montgomery hasn't yet seen three possession cases involving medical-marijuana
patients stemming from Gilbert Police Department actions in June, including the
one targeting Ross Taylor.
The Gilbert PD hadn't submitted the cases for potential prosecution as of press
time but says it intends to do so.
Gilbert Police Chief Tim Dorn and some of his officers apparently hold
unsupported beliefs about the new marijuana law, casting doubt on the
appropriateness of their actions in two of the three cases.
During the raid on Taylor's home, Gilbert officers interrogated Taylor about
where he obtained his pot. Bill Balafas, Dorn's spokesman, admits that the
department's stance is that if Taylor obtained pot from any source other than a marijuana
dispensary or by growing it himself, he can't legally possess it.
But this is not true. The law states clearly in a stand-alone statute that
patients legally can possess up to the 2.5 ounces. Nothing about the source is
mentioned.
Also, the police report says Taylor told officers (and he also told New Times)
that he'd gotten the pot from a friend in Prescott. Even on the "FAQ"
section of the DHS' website, the state says patients can legally obtain
marijuana from other patients. The police report on Taylor's case states that
officers contacted the DHS to ask how individuals could legally obtain and
possess marijuana. The cops were told, according to the report, that the
"only options" are for patients to grow it themselves or have it grown
by designated caregivers.
DHS officials say they don't know who among their staff may have talked to the
Gilbert PD.
About midnight on June 20, a Gilbert police officer pulled over a 22-year-old
man who allegedly had failed to come to a complete stop as he pulled out of a
Filiberto's parking lot. When he walked up to the car, the officer claimed he
smelled "an overwhelming odor of fresh marijuana" in the car, a police
report states.
The driver, who talked to New Times on the condition that his name not be
published, showed the officer four small baggies of marijuana and his patient-registration card. The pot weighed only about a half-ounce, but the officer questioned the
man about where he'd gotten it. A friend gave it to him, the driver said.
The cop told him that unless he grew it himself, he couldn't legally possess it,
despite his card, the driver tells New Times. And the motorist had another
problem.
Because of his bloodshot eyes, leg tremors, and "greenish tint" on his
tongue, the officer wrote that he suspected the driver was under the influence. The suspect claimed he'd last used marijuana a couple of
days earlier, then changed his story and said it had been that morning. He was
arrested on suspicion of DUI.
Balafas, a trained drug-recognition expert, says marijuana can affect drivers up
to 12 or even 24 hours after its use. Though that claim sounds dubious, Gilbert
town prosecutor Lynn Arouh says convictions in marijuana DUI cases can be easy
to win because a state law prohibits driving with any trace of marijuana in the
bloodstream. The Arizona Medical Marijuana Act shields patients from this strict
standard — but not when the state can prove that the driver was impaired at
the time of the traffic stop.
As for the question of how the pot was obtained: It's irrelevant to many Valley
police agencies.
Phoenix, Mesa, Scottsdale, and Tempe don't even take a report in such cases, as
long as the qualified patient possesses less than the 2.5-ounce maximum. Even having the card isn't a requirement: All that's needed is the 20-digit
registration number that police verify with the DHS.
"We are not going to be booking" cardholders who possess less than the
limit, says PPD Sergeant Steve Martos. "That would be in direct violation
of the law."
For Gilbert resident Ross Taylor, the hashish presents more possible trouble.
The new Marijuana Act doesn't specifically reference a separate statute in
Arizona law that classifies hash as a narcotic, even though it's made from pot
plants without the addition of any other drugs.
Prosecuting cardholding patients for a small amount of hash would seem to fly
against the spirit of the law. It'll be interesting to see how Montgomery
handles this one. If hash possession remains a felony, the makers of marijuana
edibles will see their style cramped a bit, since making hash often is the first
step in producing certain pot-infused food items, such as cookies
and ice cream.
Gilbert police might see better prosecutorial results stemming from another raid
in late June involving an unlicensed business called the Medical Marijuana
Advocacy Group.
The business' owner, Garry Ferguson, is a medical-marijuana patient who has
suffered from pain, a severe limp, and mobility problems since a 2003 motorcycle
collision. Unemployed, Ferguson came to Tempe from a family homestead in Sanders
a few weeks ago after realizing that his interest in the medical-marijuana cause
and making money might be brought together because of the new law.
Ferguson admits that he sold marijuana openly from a Tempe office at 2011 East
Fifth Street to hundreds of card-carrying patients, many of whom were referred
by doctors' offices. But he may have misapplied the law. Unlike those of the
compassion clubs, Ferguson says, his actions were covered under a different part
of the medical-marijuana law that mentions how cardholders are prohibited from selling pot to anyone who doesn't have a card.
This means cardholders can sell to other cardholders, he says. Lawyers contacted
by New Times aren't so sure, and an answer won't be available until — or if
— a prosecutor tries a case testing the principle.
Whether the Tempe Police Department knew about the operation is unclear, but
Gilbert police ended up receiving a tip about Ferguson's place. On June 16, a
report states, Gilbert Officer Josh Wybron entered the business dressed in
street clothes and saw what looked like illegal drug transactions, five
marijuana plants growing in pots, people freely smoking marijuana, and various
jars of pot and "eatables" displayed openly in the office.
Wybron signaled other officers. Gilbert cops detained five people and seized the
suspected contraband. But in a nod to the confusion Gilbert officers apparently
feel about the new law, no one was taken to jail.
Gilbert hasn't yet submitted charges to
prosecutors. Ferguson says he and everyone else in the office at that time are
registered patients.
The day after the raid, New Times interviewed a defiant Ferguson, who said he
told the officers, "I'm going to continue doing tomorrow what I'm doing
today."
True to his word, he showed New Times several pot plants he'd brought into the
office. A couple of "customers" came in and apparently obtained their
marijuana. Ferguson says he's still in business but now operates more along the
"donation" lines of the compassion clubs.
But he gripes that hundreds of patients he was serving stopped coming after the
raid, and only a few diehards remain. "I'll be out of here in a few
days," he says.
Perhaps his patients defected to the more cautious and law-abiding compassion
clubs that he's trying to mimic.
Two days before the July 4 holiday weekend, the Justice Department dropped the Big One:
Following the letters sent by the U.S. Attorneys to their pro-pot states, Deputy
U.S. Attorney General James Cole on June 28 issued an awaited
"clarification" to the 2009 Ogden Memo.
October 2009 Ogden Memo,
MEMORANDUM FOR UNITED STATES ATTORNEYS
Like the preceding letters, the clarification stops well short of a heavy-handed
slap-down of the states' programs. Cole's letter to the U.S. Attorneys in all 50
states reiterates the Obama Administration' s concept of not targeting patients
and small-time caregivers. But it emphasizes a potential threat to businesses
that would supply the patients.
Arizona Medical Marijuana Law: State Sues U.S. Justice Department
Over US DOJ Medical Marijuana Warning Letters
The Controlled Substances Act, Cole notes, allows for wide-ranging enforcement
that includes targeting "proceeds" of marijuana businesses. People who
engage in such businesses, he writes, face "potential prosecution"
subject to the discretion of each U.S. Attorney.
Governor Brewer quickly announced that the Cole letter proves she took "the
proper course of action" in halting the dispensary industry and filing the lawsuit. But it appears she and Horne still are
exaggerating the threat as political cover for their voter-violating actions.
In a news release about the Cole letter, Horne
states that the feds "will" prosecute people who facilitate commercial
marijuana operations. In fact, Cole's letter states that he's giving
"guidance" to U.S. Attorneys, who have "broad discretion" on
how to handle enforcement.
In other words, Arizona could be handling this situation differently: State
leaders could implement the law as voters intended, then fight for the rights of
voters if and when the feds did something.
Industry experts and hopeful dispensary owners in Arizona tell New Times that
Brewer's actions have scared off some dispensary investors. Between Brewer and
the feds, more delays in the development of a medical-marijuana industry in
Arizona are a given, says Vincent Palazzotto, executive director of the national
Medical Marijuana Patient Association.
But the California resident says he sees "no one" closing up shop in
California because of the Cole letter, which should be a lesson in Arizona.
MEMORANDUM FOR UNITED STATES ATTORNEYS
"They'll be willing to take this the whole way," Palazzotto says of
members of the California medical-pot industry.
Patients and their advocates have struck back against anti-medical- marijuana
forces in Arizona, filing two lawsuits in Maricopa County Superior Court that
aim to stop Brewer and Horne's interference. The Arizona Medical Marijuana
Association (made up of the same people as the Arizona Medical Marijuana Policy
Project, which put Prop 203 on the ballot) and other advocates argued a motion
in federal court recently that Brewer's lawsuit should be dismissed because of
"lack of jurisdiction or . . . failure to state a claim on which relief can
be granted."
The advocates are represented, in part, by lawyers from the American Civil
Liberties
Union.
As the legal battle shapes up, Carolyn Short's anti-drug group is plotting to
put a repeal of the law before voters in the 2012 election.
All of which is to say that the fight over medical marijuana is far from over.
Yet as of July, despite Brewer's actions, most police agencies are following the
rules outlined in the new law.
And marijuana cultivation, patient-to-patient
"gifts," and patient cooperatives are becoming more common.
For the growing number of medical-marijuana users, the new state statute is
working as voters intended.
http://www.phoenixn
ewtimes.com/ 2011-07-14/ news/medical- marijuana- is-under- attack-in-
arizona-again- but-this- time-voters- and-patients- hold-the- high-ground/
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