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Judge Can't Restrict Medical Cannabis In Arizona

The General

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State judges cannot bar those placed on probation from using medical marijuana if they are otherwise eligible, the state Court of Appeals ruled Friday. And that even includes those who were convicted for drug offenses. Appellate judge Peter Eckerstrom said when voters approved the Arizona Medical Marijuana Act in 2010 they declared that those with a doctor's recommendation and the required state-issued ID card are not subject to "arrest, prosecution or penalty in any manner, or denial of any right or privilege." And that "clear language," Eckerstrom said, prohibits a trial judge from barring someone from using medical marijuana consistent with that law.

Eckerstrom did not dispute there are probably public policy concerns about letting someone with a long history of substance abuse, as in this case, continue to use marijuana for whatever reason. But the judge said these public policy debates are for the Legislature and, by extension, for the people through their constitutional power to make their own laws. "They have done so here," he wrote. "Our task is to apply the law they have written, not to second-guess the wisdom of their determinations."

Deputy Cochise County Attorney Brian McIntyre, who had argued the restriction was valid, said his agency is reviewing the ruling before deciding whether to seek Supreme Court review. The ruling, which sets new precedent in Arizona, involves Keenan Reed-Kaliher, who was charged with possession of marijuana for sale and attempted possession of a narcotic drug for sale.

He was sentenced to 18 months in prison on the marijuana sale count and placed on probation for three years on the other charge. That probation began on his release in June 2011. Among the conditions was that 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.

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. Eckerstrom, writing for the majority in Friday's 2-1 ruling, said that decision was wrong.

"Under the express terms of the immunity provision, Reed-Kaliher could not be deprived of the privilege of probation solely based on his medical use of marijuana," the appellate judge wrote. "A condition of probation threatening to revoke his privilege for such use cannot be enforced lawfully and is invalid." And Eckerstrom said that the promise to "obey all laws" can't be used against Reed-Kaliher because voters specifically exempted medical use from criminal laws.

The drug does remain illegal under federal law. But Eckerstrom said the Arizona law is not preempted by federal law as Reed-Kaliher still could be arrested by federal authorities if they wanted. But he said state judges have neither a duty nor role in enforcing the federal statutes. Friday's ruling drew a dissent by appellate Judge Philip Espinosa, who said the terms of the 2010 voter-approved law is irrelevant. He said Reed-Kaliher stipulated to the terms of his probation, including an agreement to obey all laws.

"In this case, Reed-Kaliher expressly agreed to accept that restriction in order to gain the benefits of a plea bargain, and I see no basis for excluding the federal drug laws from that agreement," Espinosa wrote. The judge also said there could be implications for defendants charged with drug offenses if the majority opinion stands. "Prosecutors and courts unable to prohibit marijuana use may be much less likely to offer or approve plea agreements in many cases," Espinosa wrote.


News Moderator - The General @ 420 MAGAZINE ®
Source: Azdailysun.com
Author: Howard Fischer
Contact: Contact Us
Website: Judge can't restrict med pot in Arizona


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"...not possess or use illegal drugs..."

So he's allowed all the Vicodin and Xanax that he wants, as long as he pays a doctor to prescribe them? How is that better than bud?

Some surprisingly intelligent and logical court decisions coming out of Arizona... very positive signs. :)


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The pot will probably settle the convict down. They should have a provision in his plea bargain to ONLY use #MedMj instead of more dangerous substances. From the summary reading of this case, that's exactly what this convict did! Chochise county, Arizona is the home of Sheriff Larry Dever's family ranch, the now deceased and still beloved four-term Republican sheriff. What would have Larry done in this case, if he had been alive and sitting in the elevating judge's seat in this case? Now, the Az Court of Appeals has rendered their verdict. And, that verdict follows the will and language of the voters from clear back to November of 2010 ! And, they are still attempting to obfuscate the use of #MedMj in the Copper State ! What are they going to do when #RecMj goes legal in November of 2016 in Az? I suggest they all move to Antarctica where they can feel "warm" !


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Agreed on the court decisions, but not surprising to me. AZ is Barry Goldwater country. Barry "Extremism in the defense of liberty is no vice." at his nominating convention Goldwater. They have their religeous left and right, but cannabis is reminding Arizonans who they really are.
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