The Arizona Supreme Court issued two decisions this week providing guidance as to scope of the immunity provisions contained in the medical marijuana statute. Both cases, State V. Hancock (Ferrell) and Reed-Kaliher v. Hoggatt (State), specifically addressed the government’s ability to prevent the use of medical marijuana (by a person who legally obtained it) while on probation.
STATE V. HANCOCK (FERRELL)
Under the Arizona Medical Marijuana Act a registered qualifying patient cannot be “arrest[ed], prosecut[ed] or penal[ized] in any manner” or denied “any right or privilege” for authorized medical marijuana possession and use. Trial courts have interpreted this provision in a variety of conflicting manners. Here, the Supreme Court addressed it applications to medical marijuana users placed upon probation. The specifically Court addressed:
- Whether the immunity provisions of the medical marijuana statute prohibits a trial court from ordering “no marijuana use” as a condition of probation, for people who have medical marijuana cards?
- If prohibited, then can the State withdraw from a plea agreement after the trial court rejects the “no marijuana use” of probation?
The “No MJ Term” of Probation – Can’t Do It.
“The Marijuana Condition, as applied to AMMA-compliant use, is an illegal term, and the trial court correctly rejected it. In light of our holding, we need not address whether the court of appeals correctly disapproved the Yavapai County Attorney’s use of a blanket policy to include the Marijuana Condition in Ferrell’s plea agreement.”
State Can Withdraw From Plea (because of the specific language of the plea).
“…[T]he State has a lawful basis for withdrawing from the plea agreement. The stricken Marijuana Condition validly required Ferrell to abstain from recreational marijuana use while on probation, even if she visits states that allow such use. No other provision in the agreement conditions Ferrell’s probation on her abstention from using marijuana outside AMMA’s authorization. Pursuant to paragraph seven of the agreement, therefore, the State must be allowed to withdraw from the plea agreement.”
REED-KALIHER v. HOGGATT (STATE)
The Arizona Supreme Court framed the issue to be decided, before the oral arguments, as:
“Whether a Superior Court Judge may preclude a probationer from using marijuana, where that probationer has obtained a medical marijuana card permitting use under the Arizona Medical Marijuana Act, hereinafter, the AMMA.”
Procedural & Factual History
Keenan Reed-Kaliher pled guilty to possession of marijuana for sale and attempted possession of a narcotic drug for sale. The parties agreed to and the trial judge accepted a 1.5 year sentence for the sale offense followed by probation for three years for the attempt offense.
Reed- Kaliher began serving his probation after his release from prison in 2011. Among the conditions of probation that he signed, was a term requiring that he “[o]bey all laws” and “[n]ot possess or use illegal drugs, toxic vapors, or controlled substances, or use or possess and prescription drugs without a valid prescription.”
After Reed-Kaliher began serving his probation, he obtained a “registry identification card” from the Arizona Department of Health Services to allow him to use medical marijuana under the Arizona Medical Marijuana Act (the AMMA). Subsequently, his probation officer imposed another condition of probation that specifically prohibited possessing or using marijuana for any reason.
Reed-Kaliher then sought relief from the trial court. He asked the court to amend his probation conditions to delete the “no marijuana” term. The court denied the motion.
The Court of Appeals (Reverses for Reed-Kaliher)
He took his case to the Arizona Court of Appeals, which reversed the trial court. The Court of Appeals held:
In sum, the AMMA is a comprehensive scheme that allows state officials to prohibit a person from “[u]sing marijuana except as authorized under” the act. § 36-2802(E). The canon of construction expressio unius est exclusio alterius applies with particular force in this context, given that Arizona voters were well aware marijuana would remain criminalized except as specifically provided in the AMMA. Against this backdrop, it is therefore clear that neither state prosecutors nor judges may read exceptions into the law where none exist, thereby contravening the plain terms of the AMMA and usurping the legislative authority exercised by, and ultimately reserved for, the people.
The Arizona Supreme Court (Also holds For Reed-Kaliher)
Similar to the Court of Appeals, the Supreme Court ruled:
“We therefore hold that any probation term that threatens to revoke probation for medical marijuana use that complies with the terms of AMMA is unenforceable and illegal under AMMA.”
These two rulings do not drastically alter anything we already knew about these statutes. However, the interesting take away is the court’s unwavering recognition that the law contains a well written immunity clause. This recognition raises questions about how the medical marijuana law will be interpreted when (and if) the Supreme Court hears other challenges such as marijuana DUI cases.
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