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AFFIRMED
COUNSEL
OPINION
Judge Jon W. Thompson delivered the Opinion of the Court, in which Judge
Thomas C. Kleinschmidt1 joined, and to which Presiding Judge Kenton D.
Jones dissented.
T H O M P S O N, Judge:
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DISCUSSION
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3 Jones suggests the definitions contained within the criminal code and
those within AMMA conflict, and, because the provisions of AMMA are
more recently enacted, they control. However, we conclude AMMA and
the criminal code may be read together. See Berndt v. Ariz. Dep’t of Corrs.,
238 Ariz. 524, 528, ¶ 11 (App. 2015) (citing Baker v. Gardner, 160 Ariz. 98, 101
(1988) (“Only if two statutes truly conflict do we apply the more recent or
more specific provision and disregard the other.”). The criminal code
proscribes the use and possession of narcotic drugs derived from the
marijuana plant. AMMA protects a medical user from prosecution and
conviction for using marijuana if the patient proves, by a preponderance of
evidence, his actions “fall within the range of immune action.” State v. Fields
ex rel. Cty. of Pima, 232 Ariz. 265, 269, ¶¶ 14-15 (App. 2013) (citing Fid. Sec.
Life Ins. v. Ariz. Dep’t of Ins., 191 Ariz. 222, 225, ¶ 9 (1998); State v. Rhymes,
129 Ariz. 56, 57 (1981)); see also Reed-Kaliher, 237 Ariz. at 123, ¶¶ 15-17.
Arizona law generally criminalizes the use or possession of marijuana and
hashish; we here are concerned then only with the breadth of the immunity
from prosecution available under AMMA.
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Jones’s opening brief states, “Per the Arizona Medical Marijuana Act
(AMMA), codified as A.R.S. § 36-2801, the use of marijuana and ‘any
mixture or preparation thereof’ was decriminalized for medical use.”
(Emphasis added.)
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cannabis. . . . but marijuana alone has been singled out for separate
treatment under our statutes.” Id. We have held that our legislature’s
differing treatment of hashish and marijuana is to be attributed to the great
potency of the former, rendering it “susceptible to serious and extensive
abuse.” State v. Floyd, 120 Ariz. 358, 360 (App. 1978).
CONCLUSION
5 Cf. Colo. Const. art. XVIII, § 16: “Personal Use and Regulation of
Marijuana,” expressly legalizing hashish (“marijuana” includes “the resin
extracted from any part of the plant…”) and Colo. Rev. Stat. Ann. § 12-43.4-
901(4)(f) (2016), restricting the sale of hashish (elsewhere defined as a “retail
marijuana product”) in a single transaction to a fraction of that allowed for
marijuana, obviously because of the greater potency of hashish.
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J O N E S, Judge, dissenting:
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Opinion of the Court
are defined, we apply that definition.”) (citing State v. Reynolds, 170 Ariz.
233, 234 (1992)). Therefore, the AMMA’s definition of “marijuana” controls
our analysis of the word within the context of its application.
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http://www.azdhs.gov/documents/licensing/medical-marijuana/
dispensaries/dispensary-handbook.pdf (published June 8, 2017) (emphasis
added). A dispensary may sell these products as long as the patient does
not exceed his “allowable amount of marijuana” within a fourteen-day
period. Id. The regulations and handbook confirm ADHS’s understanding
that all forms of marijuana, including the resin of and concentrates derived
from the marijuana plant — cannabis — are subject to the protections of the
AMMA.
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