Medical Marijuana Law (AZ) FAQ

There is a lot of confusion about the Arizona Medical Marijuana Law and it’s application. Here is a short primer to help you understand better what the law does and does not do.

Preface:

In the November 2010 general election, the Arizona electorate passed Prop 203, the legalization of marijuana used for medicinal purposes.  Since the passage of the act, confusion over what is and what is not a permissible use, and the consequences for being caught in a permissible use has only increased.  After all, the simple notion that it is now legal if one follows the dictates of the law should mean that someone with a medical marijuana card who ingests marijuana according to a physician’s prescription should feel free to do so, shouldn’t they?  The short answer is: it depends.

Keep in mind, this law came into effect in AZ in 2011.  No state court has yet examined the nuances of the law, the meanings of the language, or the consequences of violations.  The famous case of Miranda v. Arizona was published in 1966, and 46 years later, lawyers, legislators, and courts are still examining its meaning and effects.  So, don’t expect a lot of guidance from the courts anytime soon.

The Law.

Arizona’s medical marijuana law is codified at A.R.S. § 36-2801 through 2819.  For the most part, the law addresses the prerequisites to become a “qualified patient or designated caregiver” or how to become a “registered nonprofit medical marijuana dispensary”.  What you need to know, other than that you will have to fill out some paperwork, is that you can become a qualified patient if you have a “debilitating medical condition” (the doctor’s prescription for it is a foregone conclusion).  That means you have:

“(a) Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, crohn’s disease, agitation of alzheimer’s disease or the treatment of these conditions.

OR

(b) A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following: cachexia or wasting syndrome; severe and chronic pain; severe nausea; seizures, including those characteristic of epilepsy; or severe and persistent muscle spasms, including those characteristic of multiple sclerosis.”

Last note on the “The Law” itself:  If you are a cardholder patient, you may not grow your own marijuana plants, unless your card also gives you “cultivator” status[1], in which case, you may keep and grow not more than “twelve marijuana plants contained in an enclosed, locked facility…”  Just being a patient, in and of itself, does not give you permission to have your own plants.  And then, if you are a cultivator, your “enclosed, locked facility” means: “a closet, room, greenhouse or other enclosed area equipped with locks or other security devices that permit access only by a cardholder.”

You will find sites like http://www.azdhs.gov/medicalmarijuana/faqs/index.htm full of useful information if you are interested in obtaining a medical marijuana card.

Okay, so now you know whether you are eligible to actually obtain the card or not, but that’s probably not why you’re reading this.

The real questions are things like these:

Q.        What happens if my employer does a random drug screening and I test positive for THC (the active metabolite of marijuana)?  Can I be fired for that?  Can I sue if I am fired for that?  How will I know?  Does my employer have to give me the results of my drug screening?  What are my damages?  Will my employer be able to tell other future employers about my results?  What if I refuse to test?

A.        These are all very typical and very understandable questions.  The short answer again, is, it depends.  Generally speaking, AZ’s medical marijuana law prohibits “discrimination” in “hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either:

1. The person’s status as a cardholder.
2. A registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.”

Generally, discrimination means what it sounds like.  You are being treated differently than someone who is similarly situated because of your positive test or status as a cardholder.  This is difficult to prove, generally, because most employment relationships in Arizona are “at will”, meaning, you can be fired for good cause, no cause, or any cause (so long as it is not for race, religion, gender, or national origin).

Does the employer have any other reason for firing/demoting/punishing you? Can they use that as a pretext? Maybe.  It always will come down to proof and what people would testify to.  It’s pretty rare that we will discover an internal email where some corporate manager or executive directly states “Joe Worker just tested positive for marijuana, and even though he has a medical marijuana card we need to fire him immediately because we don’t like marijuana.”  More often than not, you will simply be told you are being terminated, and they don’t really have to tell you why.

One area where our medical marijuana statute is definitely lacking is a description of damages.  What are they?  Lost wages?  Damaged reputation?  Treble damages?  Get your job back?  There is no clear answer for the time being.[2]  Similarly, we have to presume in absence of law to the contrary that a positive marijuana test would be treated the same as any other information occasioned by your employer in the course of your employment.  Specifically, it cannot be disclosed in an employee reference check.  The three somewhat ‘default’ pieces of information that most companies are willing to provide in a reference check are: 1) date of hire; 2) date of separation; and, 3) is the employee eligible for re-hire?  That’s usually it.  Sometimes, depending on the employer and what information the former employee authorizes(d), it could also include whether the separation was resignation or termination, and salary at the time of separation.

Also, however, the law builds in some protections to the employer.  They can openly discriminate against medical marijuana users/cardholders if allowing it to go on would violate the terms of any federal contracts or cost them any money as a result of a federal contract.  (Think Defense Department contractors, e.g.)

Most people can accept as pretty axiomatic the idea that they can’t smoke m/j at their workplace, or at a minimum, that their employer may certainly dictate when/where/whether it’s permitted at the workplace.  The problem arises of course because m/j stays in your system for so long after ingestion/inhalation, and what people really fear is that something they do in the privacy of their homes is going to be detected at work.  If m/j only stayed in your system for a few hours it wouldn’t be a problem, but science tells us it can be in there for months, depending on a variety of different factors.[3]

 

Q.        I am a landlord, and I have a prospective tenant who disclosed that he/she is a cardholder, do I still have to rent to them?  Can they grow marijuana in the yard or in the house?  Will I get in trouble with local, state, or federal authorities if they do?

A.        As we mentioned, this is a new and very complicated issue.  Again, referring to our new state law, the statute prohibits “discrimination” and provides that,

“No school or landlord may refuse to enroll or lease to and may not otherwise penalize a person solely for his status as a cardholder, unless failing to do so would cause the school or landlord to lose a monetary or licensing related benefit under federal law or regulations.”  A.R.S. § 36-2813(A).

So, on a state level at least (think of that as a part of the big picture) you would still have to rent to this person who disclosed their status as a cardholder, much as you cannot discriminate against a prospective tenant because of race, religion, national origin, or the presence of children (though these are generally federal laws prohibiting housing discrimination).  That does not mean, however, that the person has any more or less power to damage the property or break the law than any other tenant would.  Assuming your tenant is law abiding, as any tenant should be, you will likely not incur any problems on the state level.  If the tenant is also licensed to be a cultivator of marijuana, they may possess a certain number of marijuana plants within the property, with some restrictions.  Also, the city/county in which your property is located is permitted to place zoning restrictions on homes/businesses where m/j is grown, these could impose usage fees or other taxes, rules regarding safety of others related to how the marijuana is grown and/or stored, or other conditions we cannot now imagine.  Suffice it to note for the time being that at a minimum, the state law empowers local governments to impose zoning restrictions, just like they could for any residential or business district.

Remember also that medical marijuana now occupies a strange grey area because it has been legalized (or at least decriminalized) according to Arizona state law, but it remains in all respects a federal crime to:

… knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.

Thus, even someone with pure intentions, under the auspice of state law with a medical marijuana card and a permit to cultivate or grow marijuana, still could be (and probably would be) in violation of federal law.  There are other federal crimes involving drug manufacture, trafficking, and transportation, and I will skip the possible penalties here, but suffice it to say, there is a real lack of clarity when it comes to this stuff.

 

Q.        I have a medical marijuana card, and I smoked/ingested marijuana according to the prescription.  Can I still get a DUI?  (Or alternatively, I was pulled over and ARRESTED for DUI, even though I am a card holder, can they do that?)

A.        At least in this regard, AZ law is much clearer; YES.

Arizona’s DUI laws have several different provisions.  In other words, there are many ways that you can commit the offense of DUI.  The most common way that people are aware of is what’s known as DUI per se, and that’s when your blood alcohol level is at a .08 or higher.  (Which, coincidentally, is why they always say that if you have been drinking you’re safe if you tell the officer you only had 2 drinks, because 2 drinks will almost never raise your BAC above .08; not only is this information bad advice and untrue, it’s likely to get you arrested because you’ve just admitted to the cop that you HAVE been drinking.  Whether it’s true or not that you only had two drinks, the majority of police aren’t going to believe you anyway.)

However, there are other ways to be DUI, and if you’re a marijuana user (prescription or otherwise), two of those ways are going to concern you.  The first is called “impaired to the slightest degree” by alcohol or drugs (think controlled substances, but not necessarily just controlled substances).  The drugs can be legal or illegal.  When you think about what impaired to the slightest degree means, it becomes somewhat obvious.  Someone who takes a handful of tranquilizers and then gets behind the wheel probably is impaired at least to the slightest degree, and is going to have difficulty driving.  Most attorneys who practice in DUI law refer to this as the A1 because it’s short for A.R.S. §28-1381(A)(1).  The only catch is that in order for you to be convicted, the state must actually prove that you were impaired while driving.

Contrarily, there is another way to be DUI, and that’s with any of those above-mentioned controlled substances in your system (for that matter, over the counter medicine could do it too depending on what it is).  This is also referred to (by attorneys) as the A3 (you can probably guess why at this point) it’s short for A.R.S. §28-1381(A)(3).  All the state has to prove to convict you of this is that 1) you drove; 2) you had the drug or metabolite (what your body turns the drug into after you’ve ingested it) in your system.  They do not have to prove impairment to convict you of an A3.

Okay—why did I have to tell you all about AZ’s DUI laws?  So that it would make sense when I tell you that having a valid prescription for medical marijuana is only a defense to an A3, not an A1!!  You could, therefore, still be guilty of a crime.

So, what will the consequences be for YOU in YOUR situation?  We won’t know until it happens, but we’d be very happy to invite you in for a consultation on any of the issues we’ve talked about in this FAQ.