The National Situation

Arizona has thus joined with eleven other states which have passed laws for the medicinal use of marijuana since 1996: California, Oregon, Washington, Alaska, Colorado, Nevada, Maine, Montana, New Mexico, Rhode Island, and Vermont.

In the states which have approved the medical use of marijuana, thousands of patients, doctors and caregivers are participating in programs protected from state or local prosecution.

Conflicts between State and Federal Laws

However, despite the progress that has been made toward creating safe and legal systems at the state and local level, federal laws banning any use of marijuana remain in effect (except for a narrow exception for participants in federally approved clinical trials.) In fact, on May 14, 2001 the United States Supreme Court issued a decision reaffirming that federal law prohibits the distribution of marijuana for any reason.

In 2005 the U.S. Supreme Court, in Gonzales v. Raich ruled that the federal government had the power under the commerce clause of the U. S. Constitution to enforce federal marijuana laws against patients who possess or cultivate marijuana. The ruling did not address any issues related to medical marijuana nor did it overturn any of the state laws on medical marijuana. The power of state governments to enact and enforce state medical marijuana laws was not affected by this decision.

From a practical point of view, federal prosecutors tend to act against large drug operations. Federal charges are rarely brought against patients for small-scale, personal possession or cultivation of marijuana, although this remains a possibility. In fact, arrests for marijuana in the U.S. over the last several years made by federal authorities account for only 1% of all marijuana arrests.

If a state like Arizona has removed criminal penalties for medical use of marijuana, then patients and physicians are protected from arrest by state or local authorities. It is important to note, however, that the protections of the Arizona medical marijuana act do not protect patients and physicians from possible federal prosecution.

Protects Patients and Caregivers from Arrest at the State or Local Level

Patients and their “primary caregiver” who comply with this law (obtain certification from a physician and register with the Narcotics Enforcement Division) are protected against prosecution for marijuana-related crimes under Arizona law. In the unlikely event of being arrested, patients and their caregivers who follow the law have a new legal defense available to them. If they are arrested by state or local authorities on marijuana charges, a qualified patient or primary caregiver can claim this new defense under state law if they are following the Act’s procedures and using the marijuana only for medical purposes. The law allows growing, transporting and possession of marijuana and “paraphernalia,” but only for medical purposes. It does not speak to the question of whether the purchase and/or sale of marijuana for medical purposes permitted by the Act is decriminalized.

Protects Physicians at the State, Local and Federal Levels

The Act states that, if a physician complies with the procedures specified in the Act, she or he shall not be subject to arrest or prosecution, penalized in any manner, or denied any right or privilege for providing written recommendation for the medical use of marijuana for a qualifying patient. As of September 2001, the physician is protected from state prosecution and as of 2003, from federal prosecution.

On October 29, 2002 the Ninth Circuit Court of Appeals unanimously upheld the right of doctors to recommend marijuana to their patients The Justices ruled that it is the role of the states, not the federal government to regulate the practice of medicine. In October 2003 the U.S. Supreme Court let this ruling stand (Conant v. Walters, 309F.3d 629, 2002). At the heart of the Conant decision is the First Amendment’s protection of a physician’s right to speak openly and candidly about marijuana’s potential risks and its therapeutic benefits.

Physicians may therefore recommend medical marijuana to patients free from federal threats or interference as long as they do not do more than is required of them by the Act.

Limits Qualifying Medical Conditions

In order to use marijuana as medicine, a patient must be diagnosed by a physician licensed to practice in Arizona as having one or more of the following “debilitating” medical conditions:

1. Cancer, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), or the treatment of these conditions;

2. A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following: a) Cachexia or wasting syndrome (severe weakness,

malnutrition or weight loss) b) Severe pain;

c) Severe nausea; d) Seizures, including those characteristic of epilepsy; or e) Severe and persistent muscle spasms, including those characteristic of multiple sclerosis or Crohn’s disease; f) Additional conditions which may be added by the state

Department of Health.

Sets Limits on a Patient’s Protected Supply of Medical Marijuana

Under the Arizona medical marijuana act, “adequate supply” means an amount of marijuana possessed by the qualifying patient and the primary caregiver together that is “not more than is reasonably necessary” to alleviate the symptoms or effects of a debilitating medical condition.

An “adequate supply” must not exceed three mature marijuana plants, four immature marijuana plants, and one ounce of usable marijuana per each mature plant at any given time. Arizona’s state Narcotics Enforcement Division (NED) is interpreting this to mean that a patient (and/or caregiver) can have 7 plants and/or 3 ounces of useable marijuana on hand at any given time.

What Arizona’s Law Does NOT Do

Does Not Legalize Marijuana

Federal laws banning marijuana remain in effect and the Arizona Act does not permit the recreational use of marijuana.

Does Not Allow Just Anyone to Claim “Medical Use” of Marijuana

To be covered under Arizona’s medical marijuana law, a patient must register and must have one of the listed medical conditions and have been certified by his/her doctor for medical marijuana use. If a doctor does not provide a written certification, that person does not qualify.

Does Not Allow Unlimited Supplies of Medical Marijuana

Even patients who qualify under the law must still adhere to strict limits on the quantity of medical marijuana they possess. This is limited to an “adequate supply” which shall not exceed three mature marijuana plants, four immature marijuana plants, and one ounce of usable marijuana per each mature plant (i.e. three ounces in total).

Does Not Permit the Sale of Marijuana

The medical marijuana act defense will not protect someone who sells any amount of marijuana. Any evidence of sale of marijuana can result in prosecution and years of prison time, regardless of the buyer’s or seller’s medical condition or medical authorization to use marijuana.

Does Not Allow the Use of Medical Marijuana in a Public Place, Workplace or in a Moving Vehicle

Even with a doctor’s certification, the Act specifically prohibits use of medical marijuana in any bus or moving vehicle, in the workplace, on school grounds, any use that endangers the health or well being of another person, or in any public place.

Does Not Force a Doctor to Give a Certification for Medical Marijuana

No doctor is required to authorize the medical use of marijuana. Even patients who qualify under the law must still adhere to strict limits on the quantity of medical marijuana they possess.

CHAPTER 329. [NEW] UNIFORM CONTROLLED SUBSTANCES ACT PART IX. MEDICAL USE OF MARIJUANA

[§329-121]. Definitions As used in this part: “Adequate supply” means an amount of marijuana jointly possessed between the qualifying patient and the primary caregiver that is not more than is reasonably necessary to assure the uninterrupted availability of marijuana for the purpose of alleviating the symptoms or effects of a qualifying patient’ s debilitating medical condition; provided that an “adequate supply” shall not exceed three mature marijuana plants, four immature marijuana plants, and one ounce of usable marijuana per each mature plant.

“Debilitating medical condition” means: (1) Cancer, glaucoma, positive status for human

immunodeficiency virus, acquired immune deficiency syndrome, or the treatment of these conditions;

(2) A chronic or debilitating disease or medical condition or its treatment that produces one or more of the

“Medical use” means the acquisition, possession, cultivation, use, distribution, or transportation of marijuana or paraphernalia relating to the administration of marijuana to alleviate the symptoms or effects of a qualifying patient’ s debilitating medical condition. For the purposes of “medical use”, the term distribution is limited to the transfer of marijuana and paraphernalia from the primary caregiver to the qualifying patient.

“Physician” means a person who is licensed under chapters 453 and 460, and is licensed with authority to prescribe drugs and is registered under section 329-32. “Physician” does not include physician’s assistant as described in section 453-5.3.

“Primary caregiver” means a person, other than the qualifying patient and the qualifying patient’s physician, who is eighteen- years-of-age or older who has agreed to undertake responsibility for managing the well-being of the qualifying patient with respect to the medical use of marijuana. In the case of a minor or an adult lacking legal capacity, the primary caregiver shall be a parent, guardian, or person having legal custody.

“Qualifying patient” means a person who has been diagnosed by a physician as having a debilitating medical condition.

“Usable marijuana” means the dried leaves and flowers of the plant Cannabis family Moraceae, and any mixture of preparation thereof, that are appropriate for the medical use of marijuana. “Usable marijuana” does not include the seeds, stalks, and roots of the plant.

“Written certification” means the qualifying patient’s medical records or a statement signed by a qualifying patient’s physician, stating that in the physician’s professional opinion, the qualifying patient has a debilitating medical condition and the potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient. The department of public safety may require, through its rulemaking authority, that all written certifications comply with a designated form. “Written certifications” are valid for only one year from the time of signing.

following:

(A) Cachexia or wasting syndrome; (B) Severe pain; (C) Severe nausea; (D) Seizures, including those characteristic of

epilepsy; or (E) Severe and persistent muscle spasms,

including those characteristic of multiple sclerosis or Crohn’s disease; or

(3) Any other medical condition approved by the department of health pursuant to administrative rules in

response to a request from a physician or potentially qualifying patient.

“Marijuana” shall have the same meaning as “marijuana” and “marijuana concentrate” as provided in sections 329-1 and 712-1240.

“Medical use” means the acquisition, possession, cultivation, use, distribution, or transportation of marijuana or paraphernalia relating to the administration of marijuana to alleviate the symptoms or effects of a qualifying patient’ s debilitating medical condition. For the purposes of “medical use”, the term distribution is limited to the transfer of marijuana and paraphernalia from the primary caregiver to the qualifying patient.

“Physician” means a person who is licensed under chapters 453 and 460, and is licensed with authority to prescribe drugs and is registered under section 329-32. “Physician” does not include physician’s assistant as described in section 453-5.3.

“Primary caregiver” means a person, other than the qualifying patient and the qualifying patient’s physician, who is eighteen- years-of-age or older who has agreed to undertake responsibility for managing the well-being of the qualifying patient with respect to the medical use of marijuana. In the case of a minor or an adult lacking legal capacity, the primary caregiver shall be a parent, guardian, or person having legal custody.

“Qualifying patient” means a person who has been diagnosed by a physician as having a debilitating medical condition.

“Usable marijuana” means the dried leaves and flowers of the plant Cannabis family Moraceae, and any mixture of preparation thereof, that are appropriate for the medical use of marijuana. “Usable marijuana” does not include the seeds, stalks, and roots of the plant.

“Written certification” means the qualifying patient’s medical records or a statement signed by a qualifying patient’s physician, stating that in the physician’s professional opinion, the qualifying patient has a debilitating medical condition and the potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient. The department of public safety may require, through its rulemaking authority, that all written certifications comply with a designated form. “Written certifications” are valid for only one year from the time of signing.

[§329-122]. Medical use of marijuana; conditions of use (a) Notwithstanding any law to the contrary, the medical

use of marijuana by a qualifying patient shall be permitted only if:

(1) The qualifying patient has been diagnosed by a physician as having a debilitating medical condition;

(2) The qualifying patient’s physician has certified in writing that, in the physician’s professional opinion the potential benefits of the medical use of marijuana would likely outweigh the health risks for the particular qualifying patient; and

(3) The amount of marijuana does not exceed an adequate supply.

(b) Subsection (a) shall not apply to a qualifying patient under the age of eighteen years, unless:

(1) The qualifying patient’s physician has explained the potential risks and benefits of the medical use of marijuana to the qualifying patient and to a parent, guardian, or person having legal custody of the qualifying patient; and

(2) A parent, guardian, or person having legal custody consents in writing to:

(A) Allow the qualifying patient’s the medical use of marijuana;

(B) Serve as the qualifying patient’s primary caregiver; and

(C) Control the acquisition of the marijuana, the dosage, and the frequency of the medical use of marijuana by the qualifying patient.

(c) The authorization for the medical use of marijuana in this section shall not apply to:

(1) The medical use of marijuana that endangers the health or well-being of another person;

(2) The medical use of marijuana: (A) In a school bus, public bus, or any moving

vehicle;

(B) In the workplace of one’s employment; (C) On any school grounds; (D) At any public park, public beach, public

recreation center, recreation or youth center; or (E) Other place open to the public; and

(3) The use of marijuana by a qualifying patient, parent, or primary caregiver for purposes other than medical use permitted by this chapter.

[§329-123]. Registration requirements (a) Physicians who issue written certification shall

register the names, addresses, patient identification numbers, and other identifying information of the patients issued written certifications with the department of public safety.

(b) Qualifying patients shall register with the department of public safety. Such registration shall be effective until the expiration of the certificate issued by the physician. Every qualifying patient shall provide sufficient identifying information to establish personal identity of the qualifying patient and the primary caregiver. Qualifying patients shall report changes in information within five working days. Every qualifying patient shall have only one primary caregiver at any given time. The department shall then issue to the qualifying patient a registration certificate, and may charge a reasonable fee not to exceed $25.

(c) Primary caregivers shall register with the department of public safety. Every primary caregiver shall be responsible for the care of only one qualifying patient at any given time.

(d) Upon an inquiry by a law enforcement agency, the department of public safety shall verify whether the particular qualifying patient has registered with the department and may provide reasonable access to the registry information for official law enforcement purposes.

[§329-124]. Insurance not applicable This part shall not be construed to require insurance

coverage for the medical use of marijuana.

[§329-125]. Protections afforded to a qualifying patient or primary caregiver

(a) A qualifying patient or the primary caregiver may assert the medical use of marijuana as an affirmative defense to any prosecution involving marijuana under this chapter or chapter 712; provided that the qualifying patient or the primary caregiver strictly complied with the requirements of this part.

2. (b)Any qualifying patient or primary caregiver not
   

3. (c)complying with the permitted scope of the medical use of marijuana shall not be afforded the protections against searches and seizures pertaining to the misapplication of the medical use of marijuana.
   

(c) No person shall be subject to arrest or prosecution for simply being in the presence or vicinity of the medical use of marijuana as permitted under this part. [§329-126]. Protections afforded to a treating physician

No physician shall be subject to arrest or prosecution, penalized in any manner or denied any right or privilege for providing written certification for the medical use of marijuana for a qualifying patient; provided that:

(1) The physician has diagnosed the patient as having a debilitating medical condition, as defined in section 329-121;

(2) The physician has explained the potential risks and benefits of the medical use of marijuana, as required under section 329-122;

(3) The written certification is based upon the physician’s professional opinion after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship; and

(4) The physician has complied with the registration requirements of section 329-123.

[§329-127]. Protection of marijuana and other seized property Marijuana, paraphernalia, or other property seized from

a qualifying patient or primary caregiver in connection with a claimed medical use of marijuana under this part shall be returned immediately upon the determination by a court that the qualifying patient or primary caregiver is entitled to the protections of this part, as evidenced by a decision not to prosecute, dismissal of charges, or an acquittal; provided that law enforcement agencies seizing live plants as evidence shall not be responsible for the care and maintenance of such plants.

[§329-128]. Fraudulent misrepresentation; penalty (a) Notwithstanding any law to the contrary, fraudulent

misrepresentation to a law enforcement official of any fact or circumstance relating to the medical use of marijuana to avoid arrest or prosecution under this part or c1apter 712 shall be a petty misdemeanor and subject to a fine of $500.

(b) Notwithstanding any law to the contrary, fraudulent misrepresentation to a law enforcement official of any fact or circumstance relating to the issuance of a written certificate by a physician not covered under section 329-126 for the medical use of marijuana shall be a misdemeanor. This penalty shall be in addition to any other penalties that may apply for the non- medical use of marijuana. Nothing in this section is intended to preclude the conviction of any person under section 710-1060 or for any other offense under part V of chapter 710.

CHAPTER 453. MEDICINE AND SURGERY PART I. GENERALLY

§ 453-8. Revocation, limitation, suspension, or denial of licenses

(a) In addition to any other actions authorized by law, any license to practice medicine and surgery may be revoked, limited, or suspended by the board at any time in a proceeding before the board, or may be denied, for any cause authorized by law, including but not limited to the following:

****

(13) Violation of chapter 329, the uniform controlled substances act, or any rule adopted thereunder except as provided in section 329-122;

****

§ 712-1240.1. Defense to promoting

* * * * (2) It is an affirmative defense to prosecution for any marijuana-related offense defined in this part that the person who possessed or distributed the marijuana was authorized to possess or distribute the marijuana for medical purposes pursuant to part IX of chapter 329.

Prices and information subject to change without notice.