Capricious Courts

Prior Court of Appeals decisions may reveal conflicts with Jones case that put concentrates in legal limbo.

Industry lawyers were caught by surprise a couple weeks ago when lawyer and president of Cave Creek Dispensaries, Alex Lane, submitted a motion to reconsider to the state Court of Appeals concerning the Jones case outlawing concentrates in Arizona.

As organizations like the Arizona Cannabis Bar Association and the Arizona Dispensaries Association work on amicus briefs for an impending Arizona Supreme Court case, some legal professionals felt like Lane's motion muddled the message.

The motion was denied within 36 hours.

However, Lane's exploration of high-court cases concerning marijuana led to some compelling revelations about how the Court of Appeals and the Arizona Supreme Court have dealt with concentrates in the past, and—spoiler alert—those rulings don't mesh with the Jones decision.

Whether Lane's argument would hold up in court, we may never know. The specific points he makes were incidental to the cases before the court, not directly addressing the difference between concentrates and cannabis flower, and may not have the legal punch needed to turn a decision.

Though his discoveries may not have a significant effect on the legality of concentrates in Arizona, they deserve a raised eyebrow or two.

Lane points to two cases in recent years. The first, Dobson v. McClennen, concerns the presence of THC metabolites in a patient's blood while driving.

The case was decided in 2015, but even then, the distinction between marijuana and cannabis (or more accurately the lack thereof) had been called into question by former Arizona Department of Health Services Director Will Humble, who raised the disparity in 2013—the same year the Arizona Supreme Court was petitioned to hear Dobson.

The specific wording Lane points out in Dobson indicates the court referring to "cannabis (marijuana)," indicating, in Lane's mind, that the court does in fact consider them synonyms. At least, they did in 2015.

The second case Lane brings up happened earlier this year, when a California resident and cardholder was arrested in La Paz County for possession of marijuana.

The case of State v. Kemmish only went to the Court of Appeals, which means it doesn't have standing over Jones, but may indicate that the Appellate Court has contradicted itself.

Stanley Kemmish was arrested in 2016, three years after Rodney Jones, for possession of cannabis flower, drug paraphernalia and "narcotic drugs (THC wax)," similar to Jones' counts.

The Court of Appeals absolved Kemmish under the decision that his medical documents from California were equivalent to an Arizona-issued medical cannabis card.

Lane is under the impression this indicates that Arizona patients were at greater risk than California patients. Kemmish got off with "possession of narcotics" months before the same court decided Jones deserved his jail time for the same charge.

If anything, else, Lane's study of the cases reveals that the Jones decision is out of sync with prior decisions concerning the Arizona Medical Marijuana Act. On one hand, it reinforces how ridiculous of a ruling Jones is, and on the other, may indicate that concentrates won't remain in legal limbo forever, no matter how long the courts take to sort this out.

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