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The Verde Independent | Cottonwood, Arizona

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11/19/2013 2:46:00 PM
Prosecutor says marijuana extract not the same as medical marijuana
Zander Welton
Zander Welton

Howard Fischer
Capitol Media Services

PHOENIX -- Maricopa County's chief prosecutor is asking a judge to throw out a bid by the parents of a 5-year-old Mesa boy who suffers from seizures to be able to get an extract of marijuana from dispensaries.

County Attorney Bill Montgomery is not disputing whether or not Zander Welton needs the drug. His parents have received the proper recommendation from a doctor to sign him up as a patient under the Arizona Medical Marijuana Act.

But Montgomery said Monday that those who crafted the statute legalized only marijuana for patients, which means the plant. He said any extract falls under a separate definition of the state's criminal code, a section that was not altered by the voter-approved law.

Montgomery said if Jacob and Jennifer Welton think the extract works better, they should take their case to the Legislature which can alter the law, albeit with a three-fourths vote of both the House and Senate and concurrence of the governor.

But attorney Dan Pochoda of the American Civil Liberties Union, which is representing the family, said Montgomery is legally off base. He said it's unnecessary to seek legislative intervention because the ACLU believes the law does allow for the sale and use of marijuana extracts -- and that a judge will side with the family.

The 2010 law clearly allows those with a doctor's recommendation to obtain marijuana. And it specifically permits the drug to be used in food products rather than being smoked.

But the initiative never legalized "cannabis,' which is described as the extract of the plant.

So Montgomery has advised police departments which monitor state-regulated dispensaries that his office might prosecute those who sell products which contain only extract and no plants. The result, according to the ACLU, is the family can no longer obtain the extract Zander needs.

Zander's parents say that extract is not only more palatable than grinding up the dried plant and putting it in applesauce but also contains only the chemicals he needs and not those in the whole plant that get him "high.'

The ACLU wants Maricopa County Superior Court Judge Katherine Cooper to essentially block Montgomery and others, including the state health department, from doing anything which precludes Zander from getting the extract. But the court fight will also affect in what form the approximately 40,000 other medical marijuana patients can obtain their drugs.

Montgomery said there's no basis for a lawsuit.

"All I've done so far is just provide guidance to a law enforcement agency' of how his office reads the law and what action it might take if police refer a case to his lawyers, he said. But at this point, Montgomery said, there is no case.

"I've received nothing to review ... and so there's no guarantee there would be a prosecution,' he said. "It's entirely a hypothetical.'

Montgomery acknowledged that dispensary owners have reacted to his advice to police by pulling the extracts off their shelves. But he said that's their decision, not his.

He said if the family wants access to extracts they should ask lawmakers to tweak the voter-approved law to legalize cannabis as well as marijuana for patients, correcting what he said was apparently an oversight when the initiative was drafted.

Pochoda questioned the practicality of getting a three-fourths vote from the Legislature. But he said it isn't necessary.

"The normal thing is not going to the Legislature when some prosecutor is improperly, and, in our view, illegally interpreting a law that clearly decriminalized not only marijuana but things made from marijuana,' Pochoda said.

Morgan Fox of the Marijuana Policy Project which crafted the 2010 initiative also contends Montgomery is misinterpreting the law. He said the statute allows use of any "preparation' of the drug, which he said includes extracts.

Montgomery said it very well may be that those who drafted the law intended to include food products which contain no marijuana leaves but only an extract. But he said his role is to enforce the law as written, not to interpret what those who crafted it meant in the first place.

No date has been set for a hearing.

Taylor Waste

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Reader Comments

Posted: Thursday, November 21, 2013
Article comment by: You're making sense, too, Frank

I'm not convinced Maricopa AG Montgomery is an idiot. He's said on several occasions that, from a legal point of view, regulating a substance legal under some circumstances in Arizona but a schedule 1 proscribed drug nationwide is a minefield for both Az citizens and officials.

As we've seen in California, the Feds can wipe out legitimate business owners at any time, and there is no legal way to keep them from inditing state employees that try to stop them. They just haven't tried that under the last three administrations.

And as we've seen here, local enforcement of federal proscriptions on the recreational MJ crowd is a highway robbery scandal.

Could be Bill Montgomery is trying to force the medical MJ crowd to help the ACLU go after the real problem on the Federal level.

Posted: Wednesday, November 20, 2013
Article comment by: Carl Nye is on the right track ....

The 2010 Prop 203 has this kind of language:

1. "....any preparation thereof...."



As best as I can remember the "anti-Meth"
leader of Cottonwood (can't remember his
name) was in favor of Prop 203, medical
marijuana as long as it kept well regulated. He
and the Prop 203 lobby pusher (sic) both agree
the intent of the Prop is/was to allow smoking
forms and many other forms of ingestion consumption.

It could be the prosecutor might be forcing
the legislators to add a detail list of known safe
"preparations" to our now existing medical
marijuana laws.

Thanks and Good Luck,
Frank Henry

Posted: Wednesday, November 20, 2013
Article comment by: @ Bill Montgomery

Wouldn't it be better to take marijuana off the proscribed list altogether?

Before Harry Anslinger's crusade against "reefer madness," we didn't have a pot problem in the US. There were tinctures of cannabis for doctors who knew how to use them for patients who needed the medical benefits but didn't want to get high. Hemp was a viable agricultural crop. And the few people who just wanted to get stoned had to pick and process their own common weed because no market existed for retailers to exploit.

One man changed all this for his own job security. The AMA fought him and lost because an uninformed public wanted to believe marijuana could do all the miraculous things he said it could. So now we have doctors policing doctors, patients policing doctors and each other, parents policing credulous children, and police scoring forfeitures on the highways and byways.

All for an herb that is, in fact, less harmful than tobacco, and no more beneficial than lemon balm or oregano.

Posted: Wednesday, November 20, 2013
Article comment by: Mary Heartman

@ Carl Nye
Right on!

Posted: Tuesday, November 19, 2013
Article comment by: Carl Nye

From the article:

"But the initiative never legalized "cannabis,' which is described as the extract of the plant."

Described by whom? Mr. Montgomery?

From Wikipedia:

"Cannabis is a genus of flowering plants that includes three putative varieties, Cannabis sativa, Cannabis indica, and Cannabis ruderalis."

Marijuana is cannabis. Cannabis is marijuana. How many ways did the initiative (now law) have to say the same thing? It is reasonable that the initiative used the word marijuana because everybody knows what that is. Fewer people are familiar with the word cannabis. But the obvious (to everyone except Mr. Montgomery) intent of the initiative was to make the plant and its derivatives available for medical use.

If a sign warns you to beware of ursus arctos horribilis, you might go, "huh?" But if the sign says Beware of Grizzly Bears, you immediately get the picture.

We should all beware of homo sapiens ignoramus, otherwise more familiarly known as County Attorney Bill Montgomery.

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