James Neal Tilson, Attorney at Law, P.C.

General information

Prop 203 (click here for text of Proposition) has passed in Arizona, legalizing the use and sale of marijuana for medical purposes. This will set into effect a time line which the Arizona Department of Health Services hopes will bring about the ability to award dispensary licenses and issue medical marijuana ID cards. The ADHS has posted the final rules, and on April 15, 2011 the new rules should take effect.  I will posting more about the final rules in the near future.

Link to the proposed Rules

Under the proposition, a “qualifying patient” who has a “debilitating medical condition” could obtain an “allowable amount of marijuana” from a “nonprofit medical marijuana dispensary” and could use the marijuana to treat or alleviate the debilitating medical condition or symptoms associated with that condition.

A “qualifying patient” is a person who has been diagnosed by a physician of having a “debilitating medical condition,” such as cancer, glaucoma, HIV, AIDS, Hepatitis C, Amyotrophic lateral sclerosis, Crohn's disease, agitation of Alzheimer's, and a chronic or debilitating disease/medical condition that produces severe or chronic pain, severe nausea, seizures or severe and persistent muscle spasms.

A “qualifying patient” registered with ADHS would be able to obtain up to 2.5 ounces of marijuana in a 14 day period from a registered “nonprofit medical marijuana dispensary.” If the qualifying patient's home were located more than 25 miles from the nearest nonprofit medical marijuana dispensary, the patient or a designated caregiver would be able cultivate up to 12 marijuana plants in an enclosed, locked facility.

 Arizona State Bar Update

As of the latest Ethical Opinion from the State Bar, Arizona attorneys will be able to advise their clients on the effect of the Medical Marijuana law.  More on this to follow.

Medical Marijuana Dispensaries

A medical marijuana dispensary registered with ADHS would have to be operated on a not-for-profit basis, but could receive payment for all expenses incurred in its operation. ADHS would be able to issue no more than one nonprofit medical marijuana dispensary registration certificate for every 10 pharmacy permits issued by the Arizona state board of pharmacy under current law, with at least one dispensary in each county. The dispensary would be able to cultivate marijuana only in an enclosed, locked facility.  (NOTE: the new regulations posted on Dec. 17 state that a dispensary MUST cultivate at least 70% of the marijuana that it sells, and may acquire no more than 30% of its marijuana from other sources.)  The dispensary would be able to acquire marijuana from other registered nonprofit dispensaries.  The dispensary could also acquire marijuana from a registered qualifying patient or designated caregiver (i.e. from a qualified patient able to cultivate their own marijuana), but only if the patient or caregiver were not compensated for the marijuana.

As the final rules have been posted just recently, I will be posting on their effect in the near future (perhaps after tax season...).

Medical Marijuana ID Cards

The new proposed regulations from ADHS also address how to register for a Medical Marijuana ID Card.  According to the proposed regulations, the registration process will be able to be completed online. Persons will not be able to apply for a card until April 1, 2011 at the earliest.

In order to register for medical marijuana ID card, a qualifying patient would have to submit a signed written certification issued by the physician stating that in the physician's professional opinion the patient would likely receive therapeutic or symptom relieving benefits from the medical use of marijuana to treat or alleviate the debilitating medical condition. The certification would have to specify the debilitating medical condition and be made in the course of the physician-patient relationship after the physician had completed a full assessment of the patient's medical history. If the qualifying patient were under 18 years of page, the patient's custodial parent or legal guardian would have to submit written certifications from two physicians, and the custodial parent or legal guardian would have to consent in writing to control the patient's medical use of marijuana.

A qualifying patient registered with ADHS (or a registered designated caregiver on behalf of the qualifying patient) would be able to obtain up to 2.5 ounces of marijuana in a 14 day period from a registered nonprofit medical marijuana dispensary. If the qualifying patient’s home were located more than 25 miles from the nearest nonprofit medical marijuana dispensary, the patient or designated caregiver would be able cultivate up to 12 marijuana plants in an enclosed, locked facility.

Potential Legal Issues

Proposition 203 sets out certain protections for persons who qualify for use of medical marijuana. It also sets out certain activities that would not be protected, even if the person were a qualified medical marijuana user. And in between, there seem to be a number of issues which will require the court's intervention to determine what is protected, and what is not protected activity.

Proposition 203 prohibits certain discriminatory practices:

1.  a school or landlord would not be able to refuse to enroll or least we person registered pursuant to this proposition unless failing to do so would cause the school or landlord to lose a monetary or licensing benefit under federal law;

1. an employer would not be able to discriminate against a person registered pursuant to this proposition in hiring, terminating, or imposing employment conditions unless failing to do so would cause the employer to lose a monetary or licensing benefit under federal law; and

1. an employer would not be able to penalize the qualifying patient registered pursuant to this proposition for a positive drug test for marijuana, unless the patient used, possessed, or wasn't hereby marijuana on the employment premises or during hours of employment.

On the other hand, proposition 203 would not:

1.  Authorize a person to undertake any task under the influence of marijuana that constituted negligence or professional malpractice.

1. Authorize possessing or using medical marijuana on a school bus, on the grounds of a preschool, primary school, or high school, or in a correctional facility.

1. Authorize smoking marijuana on public transportation or in a public place.

1. Authorize operating, navigating, or being an actual physical control of a motor vehicle, aircraft, or motor boat while under the influence of marijuana. A registered qualifying patient would not be considered to be under the influence of marijuana solely because of the presence of marijuana in the person system that appears in a concentration insufficient to cause impairment.

1. Require government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana.

1. Require an owner of private property to allow the use of marijuana on that property.

1. Require an employer to allow the ingestion of marijuana in the workplace.

1. Preventing nursing care or other residential or inpatient healthcare facility from adopting reasonable restrictions on the provision, storage and use of marijuana by residents or patients.

Just from the reading of the proposition itself, I can see that there are number of legal issues left undefined or were not addressed.

First of all, there's been a fair amount of controversy over the definition of a “medical condition” that causes “severe and chronic pain.”  Critics of the proposition have pointed out that this medical condition will be used as a loophole for persons who want to use marijuana for recreational purposes. And indeed, it will very likely resist easy classification or definition of medical experts of what exactly is “severe and chronic pain.”  While pain certainty exists, personal injury attorneys certainly know that trying to describe pain to someone else is very difficult. And levels of pain seemingly are experienced in almost individual basis.

And then, the list of things that proposition 203 forbids and does not prevent leave open questions of how certain issues will be interpreted. For example, proposition leaves open the question of how an employer or police agency will determine whether someone is impaired by the influence of marijuana. This is an issue because proposition makes clear that the mere presence of marijuana in the system of a qualified patient is not enough. Will the legislature state that a certain level of marijuana will equal impairment? Will the courts be forced to look at the totality of circumstances to determine whether there's impairment?

The proposition makes clear that medical marijuana does not have been reimbursed by either government or private health insurers. Which leaves open the question, if it's prescribed for medical use why isn't reimbursed?

The proposition states that a private property owner is not required to allow use of marijuana on their property. Does this mean that landlords can keep medical marijuana users off of their property? Does this leave open the landlord to legal action under the Americans with disabilities act?

And finally, a favorite issue of mine, how does this proposition affect the presence of the border patrol checkpoint in Yuma County? As many of you may know, the United States border patrol has been using drug detecting dogs at the checkpoints here in Yuma County for several years to enforce drug laws. Many of the people stopped and charged with drug offenses at the checkpoints (indeed, hundreds of people) were medical marijuana users from other states. Since Arizona did not recognize the use of marijuana for medicinal purposes, these people are often saddled with a misdemeanor drug offense. Now that Arizona (seemingly) recognizes the medicinal use of marijuana, will medical marijuana users from other states still be charged with drug offenses in Arizona? The proposition certainly protects Arizona medical marijuana users from such prosecution, however, will this protection also apply to medical marijuana users from other states?

(While the answer to this last question is unclear, you can be certain that it be an issue that I will be very involved in and will pursue stridently.)