After felony charge, ASU student appeals medical-marijuana ban on campus Arizona is the only state where medical-marijuana patients can face felony charges if they use or possess it on a college campus

Kaila White | The Republic | azcentral.com

An Arizona State University student is asking an appeals court to overturn the law that makes it illegal for him to have physician-recommended medical marijuana in his dorm room.

Andre Maestas, 20, an ASU junior and medical-marijuana cardholder, was arrested in 2014 and charged with a felony for having 0.6 grams of weed in his room on campus, roughly the equivalent of one joint.

He is the first to challenge a 2012 statute banning medical marijuana on state university campuses, which the Legislature passed two years after Arizona voters approved a ballot initiative to legalize medical marijuana.

The statute makes it a class 6 felony to possess marijuana on a college campus, even if it's medically recommended. Class 6 felonies can be reduced to Class 1 misdemeanors, which occurred in Maestas' case. He was found guilty in October after a year-and-a-half legal battle and sentenced to one year of unsupervised probation, a $750 fine and 24 hours of community service.

Arizona is the only state where a medical-marijuana patient can be charged with a felony in a situation like Maestas', according to marijuana-advocacy lawyers and activists.

“It’s not really fair to subject people who are using something out of necessity to this kind of punishment,” Maestas said after a judge sentenced him.

Why this is punishable in Arizona

Use and possession of marijuana — medicinal or not — is banned on every public college campus in the country, with punishment ranging from drug-education classes to expulsion.

Marijuana is still illegal under federal law, and schools must comply with federal law in order to receive federal grants and funding.

Most schools have interpreted the federal laws to mean they must ban marijuana under school policy, but in Arizona, lawmakers took it one step further.

Arizona's medical-marijuana program was created in 2010, and it prohibited possession or use of medical marijuana on elementary, middle and high-school campuses.

In 2012, then-Gov. Jan Brewer signed a bill modifying the law by prohibiting medical marijuana's use or possession on public university and college campuses, affecting students as well as parents, professors, employees and visitors.

Many university officials supported the change, which some viewed as a necessary precaution to secure the hundreds of millions of dollars in federal funding that Arizona’s colleges and universities receive every year.

Supporters included lobbyists for ASU, Northern Arizona University, the Arizona Board of Regents and the Arizona Community College Coordinating Council, according to public records.

Now, use or possession of medical marijuana on campus is prosecuted as a felony because of Arizona’s tough drug laws, which are among the strictest in the nation.

Arizona is the only state where possession of any amount of marijuana in any location is punishable by felony, even on the first offense, according to DrugTreatment.com.

Maestas' story

It was 12:38 a.m. on March 18, 2014, when an ASU police officer found Maestas sitting in the middle of the road at Forest Avenue and Lemon Street on ASU’s Tempe campus, according to court documents. The intersection is near ASU Gammage, and near where Maestas lived in Best Hall.

The officer arrested Maestas, who was a freshman at the time, for obstructing a public thoroughfare. The officer also searched Maestas and found a medical-marijuana card in his wallet.

Maestas was, and still is, a medical-marijuana patient. He uses it for back pain related to misaligned vertebrae.

During questioning, Maestas told the officer he had marijuana in his dorm, according to records. The officer obtained a search warrant for his room and found marijuana and paraphernalia including two pipes and a grinder, court records show.

Maestas was charged with a class 3 misdemeanor for blocking the road and a class 6 felony for drug possession, which would not have been punishable by jail time since Maestas was a first-time, nonviolent offender.

Soon after, Maestas began working with Tom Dean, a defense lawyer who has worked marijuana cases in Arizona for 15 years, who argues that Maestas and many students at the time were unaware of the campus ban. The state eventually dropped the drug charge to a class 1 misdemeanor.

Maestas also faced disciplinary action from ASU. He had to move dorms into a room alone and take drug-education classes, Maestas said, “but nothing I would consider super serious."

Although the situation happened by chance — had Maestas not been arrested for sitting in the road, an officer would not have found his card — his lawyer said he doesn’t think there was any police wrongdoing.

The 'what ifs'

In all other 23 states and Washington, D.C., that have legalized medical marijuana, Maestas could have faced only disciplinary action from the school.

If his medical marijuana had been stored off campus, Maestas would have been allowed by law to possess up to 2.5 ounces of marijuana, or 118 times more than he had.

If Maestas had been found guilty of the class 6 felony, he would have lost his financial aid and faced expulsion, and likely would not have continued college, he said.

ASU does not have a solution for its card-holding students and employees, instead emphasizing in a written statement that "Arizona’s medical marijuana law also prohibits marijuana on campus." In comparison, University of Colorado in Boulder lets card-holding freshmen break housing and dining contracts without financial penalty so they may move off campus.

As of Dec. 11, ASU police have made 187 arrests involving possession of marijuana charges in 2015, according to crime logs. In 2014, they made 158 possession-of-marijuana arrests, 149 in 2013 and 149 and 2012. Records do not clarify whether anyone arrested was a medical-marijuana patient.

Maricopa County Attorney Bill Montgomery said in an e-mail that such solutions aren't necessary.

"If someone is healthy enough to be attending college on a regular basis, there are more than enough legal medical alternatives that would allow them to successfully treat their condition and remain on campus without breaking the law," he said.

Fighting to overturn the statute

Prosecutors initially offered Maestas the chance to do a six-month treatment and drug-testing program known as TASC instead of facing trial, but he declined so he could challenge the charges.

“I’m just trying to do what’s right for medical-marijuana patients,” he said. “Nobody should be restricted access to higher education just because they happen to use a specific type of medication for whatever ailment they have.”

Maestas and his lawyer filed a Notice of Appeal in October in hopes that, within a year, the Court of Appeals, which has accepted the case, will overturn the law on the grounds that it's unconstitutional.

They argue that the 2012 change was illegal under the 1998 Voter Protection Act, which prevents the Legislature or governor from changing laws created by voter initiative unless the new law “furthers the purpose of” the original.

The 2012 modification, they argue, contradicts the Arizona Medical Marijuana Act's explicit purpose, which is defined as "to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution, criminal and other penalties and property forfeiture if such patients engage in the medical use of marijuana."

Supporters such as then-Rep. Amanda Reeve, R-Phoenix, who sponsored the "campus-ban" legislation, argued the ban is a logical extension of the 2010 law because it already prohibited use near schools.

Montgomery, the county attorney, said, "Just as drugs and school don’t mix at the elementary and high-school level, they don’t mix well with education at the college level. This underscores again what happens when special-interest groups manipulate our initiative process and pass something that’s poorly written, ill-conceived and inconsistent with federal law."

What happens next

Maestas, who now lives in Scottsdale, is focused on school, the appeal and his duties as secretary for the ASU chapter of Students for Sensible Drug Policy, a student-led organization working to end the war on drugs.

Dean expects that, after briefs and arguments, the Court of Appeals will issue its decision in late spring or summer of 2016.

In the meantime, Maestas is allowed to use medical marijuana while on probation after an Arizona Supreme Court ruling in April, but he will not be allowed to drink alcohol when he turns 21 in May.

Currently, the Campaign to Regulate Marijuana Like Alcohol is gathering signatures to qualify for the 2016 ballot. It would establish a network of licensed cannabis shops where the recreational sales of the drug would be taxed.