The Arizona Medical Marijuana Act (“AMMA”) was voted into law in 2010 and went into effect in 2012. The purpose of AMMA is to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution if such patients engage in the medical use of marijuana. AMMA does not broadly alter the legal status of marijuana in Arizona, however; AMMA protection only extends to those who adhere to AMMA specifications, which vary for patients, caregivers, and physicians.
Licensed medical doctors, osteopaths, naturopaths, and homeopaths are considered “physicians” under AMMA. AMMA protects physicians from arrest or prosecution for making or confirming the diagnosis of one of certain enumerated “debilitating medical conditions,” and providing their professional opinion that a patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate one of those conditions or the symptoms associated with condition.
AMMA only decriminalizes a physician’s conduct when it complies with the AMMA requirements for issuing written certifications for patients for the medical use of marijuana. For example, a physician must conduct an in-person physical examination of the patient and review the patient’s medical records from all providers for the prior year before certifying a patient for medical marijuana use. AMMA does not immunize a physician who certifies a patient without examining a patient or reviewing her records, or who makes a false statement in a patient certification.
Similarly, AMMA does not immunize a physician’s misconduct from sanctions from a professional licensing board. Mindful of the risk that some physicians may falsely certify a patient has a debilitating medical condition, the Arizona Department of Health Services (ADHS) states that it periodically reviews the demographics of qualifying patients. If ADHS determines that a certifying physician may be engaging in unprofessional conduct, ADHS will provide information to the physician’s licensing board.
On January 9, 2018, the Arizona Legislature introduced HB2067 (short title: unlawful medical marijuana recommendation). HB2067 would make it both an act of unprofessional conduct and a class 6 felony to recommend medical marijuana for any reason other than a debilitating medical condition. The bill was amended to stipulate that it would be considered an act of unprofessional conduct, rather than a Class 6 felony, if a specified health professional intentionally or knowingly makes a false statement in a written certification submitted to ADHS after making a diagnosis of a patient’s debilitating medical condition. HB2067 has been pending in the Arizona House of Representatives since April 3, 2018; stay tuned.
Under AMMA, a patient must obtain certification from a physician that he has one of the enumerated qualifying “debilitating conditions” for which the patient is likely to receive therapeutic or palliative benefit from the use of marijuana. These conditions are limited to: (1) a current diagnosis of cancer, glaucoma, HIV positive status, AIDS, hepatitis C, ALS, Crohn’s disease, agitation of Alzheimer’s disease, or the treatment of these conditions; or (2) a chronic or debilitating disease, medical condition, or treatment thereof that produces certain symptoms, for example severe nausea or severe and chronic pain. In 2017, PTSD was added to the list of qualifying conditions but only as a palliative measure and only when the patient is also participating in conventional treatment for PTSD.
With physician certification, the patient may obtain from ADHS a registry identification card that allows him to use and possess up to 2.5 ounces of marijuana every two weeks. Even with a card, however, the patient’s protections are not unlimited; he remains subject to prosecution for smoking marijuana in public, selling marijuana (including to other cardholders), or using or possessing marijuana on a preschool-grade 12 school campus, on a school bus, or in a correctional facility.
A registered patient may designate a qualified person as a “caregiver” to assist with the patient’s medical use of marijuana. Caregivers must obtain a registry caregiver identification card. To qualify for the card, the caregiver must be at least 21 years old and must submit a set of fingerprints for a criminal background check. Caregivers may have up to 5 patients and have up to 2.5 ounces of marijuana for each patient. Caregivers may also grow a restricted amount of marijuana plants in certain circumstances.
A criminal history may make an individual ineligible to be a caregiver under AMMA. If someone has been convicted of a felony-level violent crime, she is ineligible to be a caregiver under AMMA. If someone has been convicted of a felony-level violation of a controlled substance law and has completed his sentence within the last ten years, he will also be ineligible.
In contrast, there is no such restriction for patients, who may receive AMMA protection regardless of prior felony convictions (unless currently incarcerated). For example, a patient with a felony conviction for possession of marijuana for sale may obtain a registry card and use marijuana while on probation pursuant to that conviction, so long as his use is consistent with AMMA.
A similar conviction would bar an individual from being a caregiver. In Parsons v. Ariz. Dep’t of Health Servs., for example, a would-be caregiver with a prior felony conviction for possession of narcotic drugs for sale was deemed ineligible for a caregiver card. The applicant had been discharged from probation in 2008 and had successfully petitioned to have his conviction set aside under A.R.S. § 13-907 in 2012.
As an aside, lawyers are often asked if a criminal record can be expunged in Arizona. The answer is no.
In Parsons, the Arizona Court of Appeals explained that A.R.S. § 13-907 allows a person convicted of a criminal offense to apply to have the judgment of guilt set aside upon completion of the sentence and discharge. If the court grants the application, the court must “set aside the judgment of guilt, dismiss the accusations or information and order that the person be released from all penalties and disabilities resulting from the conviction.” However, setting aside a judgment does not eliminate all consequences the conviction, nor does it erase or remove the fact of a conviction in Arizona. Because setting aside a conviction does not mean that it ceases to exist, the Parsons court ruled that the would-be caregiver was ineligible as a caregiver under AMMA. It is interesting to note that the man completed his sentence 2008; in 2014, he was ineligible to be a caregiver. Now, ten years after he completed his sentence, 2018 may be his year.
Another difference between patients and caregivers applies to visitors from out of state. Under A.R.S. §§ 36-2801(17) and 36-2804.03(C) of AMMA, a medical marijuana patient visiting from another state may legally possess and use marijuana while in Arizona. On the other hand, AMMA offers no such protection to out of state caregivers.
In conclusion, AMMA protects those who certify, provide, or use marijuana for authorized medical use, but that protection disappears if an individual strays from AMMA’s specific requirements.
Cassandra Meynard is a litigation attorney at Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C. She will be a speaker at the National Business Institute seminar Medical Marijuana Law in Phoenix on June 5, 2018, and in Tucson on June 7, 2018. For more information, she can be reached at firstname.lastname@example.org.
Article Written By: Cassandra Meynard