ASU student with medical marijuana card convicted of drug possession on campus despite having amount allowed by Arizona Medical Marijuana Act (AMMA). Reversed on appeal. AMMA amendment was unconstitutional to extent it violated the Voter Protection Act.
The defendant is a medical marijuana (MJ) cardholder who was arrested on ASU campus after police observed him sitting in the road in front of the dorm. When searched, an MJ card was found in his wallet. Defendant admitted to having marijuana in his dorm room. After obtaining a search warrant, police searched the dorm room and found two envelopes each with 0.4 grams of marijuana, permissible under the AMMA (ARS § 36-2801(1)(a)(i)). But in violation of ARS § 15-108(A).
Defendant was charged with a class 3 misdemeanor for obstructing a public thoroughfare or highway; and a class 6 felony for drug possession. The marijuana possession charge was reduced to misdemeanor possession or use at a public college or university campus in violation of ARS § 15-108(A). He was convicted on both counts after a bench trial and was sentenced to one-year probation and fined for the drugs. Defendant appealed the drug possession conviction.
At issue on appeal was the constitutionality of ARS § 15-108(A) which removed some key AMMA protections for MJ cardholders when on public college or university property (a campus dorm). Defendant carries the burden of overcoming the presumption that a state statute is not constitutional.
The AMMA’s purpose is to decriminalize possession or use of medical marijuana. Passed in 2010, the AMMA excepted preschools, primary schools, secondary schools, and correctional facilities from its protective umbrella. (See ARS § 36-2802(B).) But in 2012, the legislature amended the AMMA as follows: “[A] person, including a cardholder … , may not lawfully possess or use marijuana on the campus of any public university, college, community college or postsecondary educational institution.”
Did ARS § 15-108(A) violate the Voter Protection Act (VPA) of the Arizona Constitution? (See Ariz. Const. art. 4, pt.1, § 1(6).) The VPA prohibits the legislature from amending a voter-passed initiative, the AMMA, unless said amendment “‘furthers the purposes’ of the initiative,” among other things.
The legislation – ARS § 15-108(A) – modified the AMMA by making it a crime for an MJ cardholder to possess or use medical marijuana on a public college or university campus. The appeals court held that such public postsecondary institutions, as property owners, may prohibit medical marijuana use on campus without violating the AMMA. However, ARS § 15-108(A) was unconstitutional in that it modified the AMMA in violation of the VPA.
First, the constitutionality of ARS § 15-108(A) was not a nonjusticiable political question as the state posited. Addressing the merits next, the court held the legislature “modified the AMMA to re-criminalize cardholders’ marijuana possession on college and university campuses,” but said amendment did not further AMMA purposes. The amendment eliminated certain AMMA protections, namely those given MJ-cardholders who were students attending public universities and colleges.
With ARS § 15-108(A) unconstitutional, the appeals court vacated the marijuana possession conviction. The justices rejected the state’s argument that the legislature had authority to prohibit medical marijuana on public college and university campuses under the AMMA’s anti-discrimination, federal-funding provision (ARS § 36-2813(A)). The AMMA does not prohibit a landowner, including the State of Arizona, from regulating what materials may be brought onto its property. See ARS §36-2814(A)(2).
For precise language, read the court’s original opinion. Legal citations omitted.
To learn more about strategic defenses against charges of drug possession, driving under the influence of medical marijuana, and related crimes, read our discussion on DUI and drug crimes in Arizona law.