Ariz. top court: Past crimes don't preclude medical-marijuana rights

By Howard Fischer Capitol Media Services
PHOENIX -- The right of patients to smoke marijuana which has been recommended by a doctor for medical conditions cannot be taken away by a judge, even if the person has been convicted of a crime, the Arizona Supreme Court ruled Tuesday.
In a pair of unanimous decisions the justices rejected arguments by prosecutors in two separate cases that denying someone the ability to use medical marijuana is a legitimate condition for probation. Justice Ann Scott Timmer, writing one of the rulings, said that ignores the wishes of voters when they approved the Arizona Medical Marijuana Act in 2010.

Justice Rebecca Berch, writing the other, not only reached the same conclusion but rejected arguments by Cochise County prosecutors that federal marijuana laws preempt what voters enacted.
Cochise County Attorney Brian McIntyre said he thinks the justices missed the point of why a judge may conclude a criminal defendant should not be smoking marijuana, for any reason, while on probation.
"I think it's a mistake to remove completely the power from judges to legitimately review a probationer's medical information and their use of certain substances,'' he said. "The trial court's usually in the best position to this particular defendant in terms of what they do or don't need.''
McIntyre said he is weighing his legal options.

So is Yavapai County Attorney Sheila Polk. She said she may seek U.S. Supreme Court review specifically on the question of whether federal law trumps what voters here approved.
In the case of Jennifer Lee Ferrell, court records show she was arrested in 2012 after police say they found her unconscious in the front seat of a car parked off of a road. She was charged with multiple offenses, including driving under the influence of alcohol.

In exchange for dismissing several of the charges, Ferrell pleaded guilty to three of them, including DUI.
As part of the deal, she signed a standard plea agreement provided by the Yavapai County Attorney's Office where she agreed not to buy, grow, possess, consume or use marijuana in any form, even though she had a medical marijuana car when arrested.
A trial judge accepted the plea deal but struck the no-marijuana condition as illegal, leading to an appeal by prosecutors.

The other case involves Keenan Reed-Kaliher, who spent time in prison for possessing marijuana for sale before being released to serve three years' probation in June 2011. Terms of his probation included include a condition he "obey all laws'' and not possess or use illegal drugs.
Reed-Kaliher subsequently got a medical marijuana card allowing him to obtain and use the drug. His probation officer then imposed an additional condition specifically barring possession and use of marijuana saying that was consistent with the original court order.

In that case, Cochise County Superior Court Judge Wallace Hoggatt upheld the condition, saying Reed-Kaliher had agreed to the conditions as part of the deal. Anyway, the judge said, probationers may lose rights that other citizens have.
Both cases ended up at the Supreme Court.
Timmer, writing in Ferrell's case, said the 2010 law is clear: Arizonans who have certain medical conditions and a doctor's recommendation can obtain an ID card allowing them to possess and use medical marijuana "without fear of arrests, prosecution or penalty in any manner.''

The same law, the justice said, says a patient cannot be denied "any right or privilege ... by a court'' for the patient's use of the drug.
Dennis McGrane, the chief deputy Yavapai County attorney, argued that Ferrell waived her rights under the Arizona Medical Marijuana Act by signing the plea deal.
"A defendant generally can waive statutory and constitutional rights as part of a plea agreement,'' Timmer acknowledged. "But a defendant cannot do so in contravention of an identifiable public policy.''
And that, the justice said, is the case here.

"By adopting AMMA, voters established as public policy that qualified patients cannot be penalized or denied any privilege as a consequence of their AMMA-compliant marijuana possession or use,'' Timmer explained. "This police would be severely compromised if the state and a defendant could bargain away the defendant's ability to lawfully use medical marijuana.''
And Timmer said even if Ferrell did agree to the condition, neither she nor prosecutors have the ability to empower the trial judge to do something that Arizona law specifically prohibits.

Justice Rebecca Berch, writing in the Cochise County case, reached an identical conclusion about imposing the additional condition on Reed-Kaliher.
Berch noted the law about barring the use of marijuana contains an exception for drugs as "lawfully administered by a health care practitioner.'' And that, she said means there is a difference between the illicit use of marijuana and the lawful use of the drug, as Arizona law requires a doctor's recommendation to get an ID card.

The court also brushed aside the argument by Doyle Johnstun, the chief criminal deputy Cochise County attorney, that it does not matter what Arizona law says.
Johnstun pointed out that Reed-Kaliher, as a condition of probation, was required to "obey all laws.'' And that, he argued, also means the Reed-Kaliher can be forced to obey federal laws which make it illegal for anyone to use marijuana for any purpose.
Berch was not buying it.

"Federal law does not (ITALICS) require our courts to enforce federal law, and Arizona law does not (ITALICS) permit (ROMAN) them to do so in contravention of AMMA,'' Berch wrote. "Thus, while the court can impose a condition that probationers not violate federal laws generally, it must not include terms requiring compliance with federal laws that prohibition marijuana use pursuant to AMMA.''
And Berch said nothing in the federal Controlled Substances Act shows that Congress intended to preempt states from having their own drug laws.

Polk disagreed, saying she thinks the federal law is supreme.
"These laws constitute a comprehensive regulatory scheme that is designed to ensure the safety and safe delivery of this country's medicine,'' Polk said. She said it is no more legal for voters here to allow the sale and use of marijuana than if Arizonans decide to allow the manufacture and distribution of heroin.
Polk said her office added "no-marijuana'' provision to plea agreements after there were a big increase in probationers obtaining medical marijuana cards.

"My goal, and the goal of the system, is to set convicted felons up to succeeed, to find employment and to turn their lives around,'' she said. "Marijuana is not part of that equation.''