Roughly 100 miles – the distance between Phoenix and Prescott – meant the difference between a felony arrest and freedom to use medical marijuana for Adam Hight.

In Phoenix, specifically Maricopa County, Hight would not have been charged with a felony for possessing marijuana extracts, he wouldn’t owe the state as much as $3,000, and he wouldn’t have had to give the state a sample of his DNA.

But that’s the price he paid for having a thimble-sized amount of marijuana wax in Yavapai County, where County Attorney Sheila Polk has fought in court to deem any byproducts of the plant outlawed even for card-carrying medical marijuana users.

The county has won in the courtroom so far, but as of mid-March, has stopped prosecuting cardholders for possessing or using extracts as the Arizona Supreme Court considers their legality.

The byproducts, which come in many forms such as wax, gummy bears, cookies, vapes and hashish, are often the preferred method for ingesting medical marijuana.

Hight said the entire ordeal was confusing for him as a cardholder.

“It was very hard to accept that I pay money to the state [for my card] and now the state is telling me I’m going to be a felon for something that was sold to me [legally],” he said.

Arrested

A police report shows Hight’s ordeal began Aug. 6, 2018. He was driving back to Prescott from a dispensary in Glendale when a Prescott Valley police officer stopped him for speeding on State Route 69. The traffic stop did not go how Hight expected.

Hight has been a cardholder for two years as a result of ligament damage to his knee.

Medical marijuana has been legal in Arizona since voters approved Proposition 203, known as the Arizona Medical Marijuana Act, or AMMA, in 2010. The AMMA protects the use of marijuana, and allows medical marijuana patients to have up to 2.5 ounces, but whether it protects the use alternate forms of marijuana is being debated at the Arizona Supreme Court and state Legislature.

Hight told the officer he had just come back from a dispensary in Phoenix, where marijuana is much cheaper than the Prescott area shops. When they asked to see his marijuana, he handed it over.

“I have nothing to hide,” he said as the cop peered inside his car.

But Hight hesitated when they asked about the bag of marijuana wax on the floor of his car. He had heard marijuana extracts, edibles and other derivatives may be considered illegal by some police departments and prosecutors even though they are readily available at every state licensed dispensary in Arizona.

Unfortunately for him, Polk, a marijuana prohibitionist who was a staunch opponent of the 2016 effort to legalize recreational use, is one of the few – possibly the only – prosecutor in the state who would take his case to court.

After conferring with Polk’s office, police put him in handcuffs, and hauled him off to jail.

In Court

The state’s highest court heard oral arguments March 19 on whether extracts, tinctures or anything else made from the cannabis plant is legal.

The case, State of Arizona v. Rodney Christopher Jones, stems from a 2013 arrest in which Rodney Jones, a cardholder, possessed .05 ounces of hashish, which is about the size of a standard memory card. Jones, 27, served 30 months in jail, and depending on what the Supreme Court decides, that may have been unnecessary.

The Yavapai Superior Court and the Court of Appeals agreed that AMMA does not protect cannabis products.

Lawmakers tried to take up the issue before the court’s decision.

Rep. Tony Rivero, R-Peoria introduced HB 2149, which would take the definition of cannabis from Arizona’s criminal code and move it under the definition of marijuana, ensuring all marijuana products would be protected under AMMA. That bill, however, was stymied by lawmakers who preferred to let the court decide.

Records obtained by Arizona Capitol Times show Hight was in the same boat as Jones. He had his valid card available, and possessed roughly an ounce of marijuana flower plus .17 ounces of concentrated “wax,” which Polk’s office considers a Class 4 felony, punishable by up to three years in prison. The wax had a value of about $75.

On the roadside, police called Polk’s office to ask whether to arrest Hight.

Despite the legal limbo of marijuana products and their widespread availability in marijuana dispensaries, Polk’s office told the police to arrest him and refer his case for prosecution.

Based on the Arizona Department of Health Services annual reports, non-marijuana flower products are selling much better than in years prior. From 2016 to 2018, non-flower has increased from roughly 4,000 pounds in 2016 to more than 10,000 pounds in 2018.

According to Cody Sides, the general manager of Nirvana Center, a dispensary in Prescott Valley, about 40 percent of the market is made up of non-marijuana flower.

“Being in our location, which is more of a retirement community, it’s really about 30 percent of our market,” Sides said.

The flower still makes for a majority of the profit, but “there’s just certain things for a lot of our patients that the flower cannot do,” he said. Sides said he has noticed a lot more concentrate users now compared to previous years, but most of those users still use a mix between flower and other products.

The rising popularity in concentrates has not stopped Yavapai County Attorney’s Office from going after medical marijuana patients who use them.

Hight agreed to plead guilty to a misdemeanor charge for drug paraphernalia, and the felony for possession of narcotics, though the felony sentence was deferred.

A judge gave him three years probation, which could be reduced to half for good behavior. He cannot consume any alcohol or drugs for the entirety of the probationary period, and he cannot leave the state until it’s completed.

Hight also spent two days in jail and had to submit to a DNA test, the results of which will be uploaded to a national database for law enforcement identification purposes. All told, he could end up paying between $1,500 and $3,000 for drug tests and drug counseling classes depending how long the probation lasts. Hight said his Toyota was also impounded resulting in an additional $200 charge.

When the police let him go, they gave him his marijuana flower back.

The probation entails he enroll in a drug offender treatment program and comply with a drug test, though he is he still allowed to smoke medical marijuana.

“They said it’s fine to have THC in my system,” Hight said.

Prosecutions Suspended

Under Polk’s command, The Yavapai County Attorney’s Office has been notoriously against marijuana of any kind. For years, her office has gone after small time medical marijuana patients, arresting them for cannabis products legally purchased at marijuana dispensaries.

The court, which has yet to rule, did not seem to buy the county’s arguments, although the justices gave no indication of how they will rule.

Yavapai County prosecutor Benjamin Kreutzberg said in the March 19 oral arguments the language in AMMA permits patients to use marijuana flower and leaves of the plant, but anything else would be illegal. Robert Mandel, representing Jones, told the justices the whole purpose of AMMA was to give marijuana patients – adults and children – medicine.

“Nobody anticipated that two or three-year-old minors were going to be rolling joints and smoking them, because that’s absurd,” Mandel said.

Bill Hughes, the chief criminal deputy in the Yavapai County Attorney’s Office told Capitol Times in a March 26 email the office would hold off on filing charges in cannabis cases with a few exceptions until the Supreme Court rules.

Hughes said he would not comment further when asked why Polk’s office decided to hold filing charges until recently, as opposed to when the Supreme Court opted to hear the case in January.

Hughes’ statement however, came with quite a few caveats. For new and pending cases where a person was also arrested on other unrelated felony charges, Yavapai County Attorney’s Office will also file the possession of cannabis charge if there is a reasonable likelihood of conviction, Hughes said. For pending cannabis-only cases that have already been filed, the Yavapai County Attorney’s Office will allow the defense to continue their case until after the Supreme Court rules in Jones, he said.

Jared Keenan, a criminal justice staff attorney with the ACLU of Arizona, had some ideas on why Polk’s office had a sudden change of heart.

“[Oral arguments] didn’t seem to go well for Yavapai County,” Keenan said, adding it now seems safer for Polk to wait to continue prosecuting until the Supreme Court makes its final decision.

Another factor that didn’t help Polk in the Jones case, is that once things started to heat up, Arizona Attorney General Mark Brnovich pulled out before the Supreme Court agreed to hear arguments. Brnovich withdrew his argument that extracts are not covered under AMMA.

Ryan Anderson, spokesperson for Brnovich, said at the time, “The last thing Mark Brnovich wants to do is stand in the way of patients getting legitimate medicine.”

Keenan said Polk should have either sought an opinion from Brnovich on the legality of extracts under AMMA or filed a lawsuit to seek an injunction against either the dispensaries for selling extracts or the Arizona Department of Health Services for authorizing their sale.

David Black, a criminal defense attorney in Phoenix, had some ideas on why that isn’t the best strategy. He said dispensaries would be a much tougher challenge in court.

One County

Hight’s situation is not only similar to State v. Jones because of what happened, but also where it took place –– in Yavapai County.

If he were arrested in Pinal, Maricopa, or Navajo counties, he likely would not have been prosecuted. Even if Hight was pulled over now in Yavapai County, he would be fine.

Pinal County Attorney Kent Volkmer has never tried to prosecute medical cannabis cases, saying the litigation over the intent of AMMA, and the fact that the Legislature is contemplating legislation to clarify that extracts are covered under the law, makes it all too messy to jump into.

“I just wasn’t going to waste a whole lot of time and resources until we had a little more information,” he said.

Volkmer noted that it’s rare for county attorneys to disagree about whether a substance is illegal or not. But the fact that the State of Arizona v. Rodney Jones case has worked its way up to the Supreme Court, which will settle the issue once and for all, shows “the system kind of worked here.”

And while he thinks concentrates are legal under AMMA, he doesn’t fault Polk for continuing to prosecute medical marijuana patients while the Jones case worked its way through the courts.

“If I believed we were prosecuting the law as designed, and that we were following the law, I would continue that practice until a court told me I was wrong,” he said. But he added that most courts that have looked at this have decided that use of extracts are covered under the AMMA.

“So we have been honoring what the majority of the courts have said, and not sort of independently evaluating it,” he said.

Amanda Steele, the spokeswoman for Maricopa County Attorney’s Office, said she is “not aware” of any prosecutions similar to the Jones case in her county.

“As long as they have a valid card, the Arizona Medical Marijuana Act specifies what [can and] can’t be prosecuted.” she said.

Pima County Attorney’s Office, on the other hand, didn’t even know how it handles cannabis cases for medical marijuana patients.

Amelia Cramer, chief deputy at Pima County Attorney Office, said the office has no way to sort out who has a valid medical marijuana card among those being prosecuted.

Coconino and Yuma Counties did not respond to multiple requests for comment.

Navajo County Attorney Brad Carlyon said his office doesn’t prosecute medical marijuana cardholders, though he has tried.

Carlyon said he agrees with Polk’s interpretation of the law – that the AMMA doesn’t cover concentrates, edibles and extracts – but his local courts have disagreed with him, shooting down his cases.

“We had a big full-blown hearing whether the Medical Marijuana Act [applied] – the same as the Supreme Court just heard – and he ruled against us,” he said.

But for those with personal use amounts of marijuana or “cannabis” products, he takes a lighter approach. If he gets a case where a person doesn’t have a medical card – or as he calls it a “get out of jail free” card. He gives them the chance to go get one before their court date and avoid prosecution.

“If they’re going to be habitual users, and there’s a way for them to do it under the law, I don’t have a problem with that,” he said.

This story has been revised to clarify that Jared Keenan does not endorse prosecution of dispensaries.