MM “Declaratory Judgment”

November 13th, 2013 by Will Humble Leave a reply »

A Complaint was filed against the ADHS and others last week.  It’s called a “Request for Declaratory Judgment and Permanent and Preliminary Injunction”.  It basically asks the Court to declare that: 1) extracts and resins from the marijuana plant are protected in the definition of “Useable Marijuana” under the Arizona Medical Marijuana Act; and 2) dispensaries, patients, caregivers, and agents are from criminal prosecution for violations of the Title 13 (criminal code) “Cannabis” statutes.  Of course, it’s more complicated than that, but that’s the thumbnail sketch of the Complaint.  This relates to one of my previous posts entitled Marijuana v. Cannabis  In a related matter, a Superior Court judge dismissed a complaint this week that argued that the 25 mile provision should be thrown out.

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24 comments

  1. Grant Fastos says:

    Seems pretty obvious ADHS is again imposing unfair interpretations making it hard for patients to get their medication. The bill explicitly stated usable, and here people are using it, yet somehow the state thinks they know better. I look forward to seeing the plaintiffs win against the state, yet again.

    • Jay says:

      It makes me sick that we have such ignorant idiots running a program in which that have no busniess running. I’m tempted to sue Azdhs for violating hippa law, your right we will win again and again as marijuana is a slang name for cannabis plant cannabis is the scientific name for marijuana are your really that stupid Will???!!!

      • James says:

        I am the first to admit that DHS has its issues, but this IS NOT a DHS issue. DHS didn’t draft the law; it only implements it. The criminal code uses one language and the AMMA uses another. Whose fault is that? Humble’s??

        This industry needs to take responsibility for its own shortcomings. Now, it’s taken a 5 year old boy to get it corrected.

  2. The Doctor says:

    I have been told by my dispensary that AZ is the ONLY state that prohibits concentrates. I intend to verify this as I was told this only a week ago. We’re not talking about doing biochemistry here. All you are doing is extracting what the plant provides a person already. It is virtually impossible to produce good edibles without making marijuana butter which by definition is an extraction or concentration process. Do you really want to bust people for making brownies? Outlawing marijuana was absurd enough as it was. Busting for brownies is straight out of the loony bin.

    • Will Humble says:

      The Arizona Medical Marijuana Act provides registry identification card holders and dispensaries a number of legal protections for their medical use of Marijuana pursuant to the Act. Interestingly, the Arizona Medical Marijuana Act definition of “Marijuana” in A.R.S. § 36-2801(8) differs from the Arizona Criminal Code’s (“Criminal Code”) definition of “Marijuana” in A.R.S. § 13-3401(19). In addition, the Arizona Medical Marijuana Act makes a distinction between “Marijuana” and “Usable Marijuana.” A.R.S. § 36-2801(8) and (15).

      The definition of “Marijuana” in the Arizona Medical Marijuana Act is “… all parts of any plant of the genus cannabis whether growing or not, and the seeds of such plant.” The definition of “Usable Marijuana” is “… the dried flowers of the marijuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks and roots of the plant and does not include the weight of any non-marijuana ingredients combined with marijuana and prepared for consumption as food or drink.” The “allowable amount of marijuana” for a qualifying patient and a designated caregiver includes “two-and-one half ounces of usable marijuana.” A.R.S. § 36-2801(1).

      The definition of “Marijuana” in the Criminal Code is “… all parts of any plant of the genus cannabis, from which the resin has not been extracted, whether growing or not, and the seeds of such plant.” “Cannabis” (a narcotic drug under the Criminal Code) is defined as: “… the following substances under whatever names they may be designated: (a) The resin extracted from any part of a plant of the genus cannabis, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or its resin. Cannabis does not include oil or cake made from the seeds of such plant, any fiber, compound, manufacture, salt, derivative, mixture or preparation of the mature stalks of such plant except the resin extracted from the stalks or any fiber, oil or cake or the sterilized seed of such plant which is incapable of germination; and (b) Every compound, manufacture, salt, derivative, mixture or preparation of such resin or tetrahydrocannabinol.” A.R.S. § 13-3401(4) and (20)(w).

      An issue the Department has been wrestling with for some time is how the definition of “Marijuana” and “Usable Marijuana” in the Arizona Medical Marijuana Act and the definition of “Cannabis” and “Marijuana” in the Criminal Code fit together. This confusion, which appears to be shared by dispensaries and registered identification card holders alike, is not easy to clear up and has resulted in the Department receiving numerous questions regarding the interplay between the protections in A.R.S. § 36-2811 and the Criminal Code.

      Having said all this- we have not been prohibiting dispensaries from preparing and selling edibles. Several AZ dispensaries sell edibles.

      • D Cassidy says:

        So dispensaries are granted protection and immunity that a patient is not granted?

        Dispensaries can manufacture and possess a narcotic drug and SELL it to patients?
        This is a blatant disregard for the rule of law and our Constitution. If there is confusion over the two definitions then why are patients being placed in harms way through dispensaries? This is unprofessional and another reason why the AMMA is working against the patients and not for them as intended. If dispensaries can posses and manufacture “cannabis” why are patients being prosecuted for the same activity?

        • Will Humble says:

          The ADHS is not a law enforcement agency and we have no criminal prosecutorial authority. Your question would be better directed to local law enforcement and prosecutors.

          • James says:

            Director Humble, I don’t know why you waste your time with these comments. If they can’t see that it’s law enforcement – ie. our illustrious County Attorney that is creating this issue, then why bother!

            Hopefully this case will clear it up and DHS won’t be on the wrong side of history in opposing the declaratory judgment. That child needs the medicine and there are dozens of patients just like him!

      • J. Franklin says:

        You have not been prohibiting dispensaries from preparing or selling edibles…

        Yet, card holders are still being arrested for edibles..
        You sleep well at night knowing this?
        If people are going to be arrested for edibles, the shops should not be able to sell it. that being said, No one should be arrested for this plant

      • Bill Hayes says:

        far to often we, the public, and the users of the AMMA offer our opinion and very little or no applicable solutions.

        Let’s change all that right now.

        Will, please, read this, all of it. This is the most comprehensive guide ever constructed to regulating cannabis and since AZDHS has been deemed this task here in Arizona everyone involved in the administrative process should be privy to this guide.

        You know me Will, I have read countless hours of cannabis literature from one source or another regarding a variety of topics form medical to legal.

        This guide is like no other I have ever laid eyes on Will and I plead with you to not only read it but make it mandatory reading for everyone at the administrative level.

        http://www.tdpf.org.uk/resources/publications/how-regulate-cannabis-practical-guide

        hang in there ladies and gents, it’s all “working its way out” ;)

  3. Doug says:

    AZDHS, fighting to keep a 5 yo. little boy away from a medication that elevates his quality of life. GO ACLU!

  4. Tommy says:

    Will Humble,

    Stop playing games with the law. I’m sure you have some form of schooling, you read the law, you know exactly what USABLE Marijuana means. I’m not sure how you look at yourself in the mirror

    • James says:

      I hope everyone who is writing on this blog goes on Bill Montgomery’s blog and writes the same – that’s where the problem lies, not with DHS!

  5. Dr. Patel says:

    I don’t see this as an ADHS problem, but rather an interpretation of the law. This is a matter of legislation. While edibles, topical lotions, and other forms of medicine are ideal for patients with joint pain, the laws are written as such that makes these forms illegal. Hence dispensaries are prevented from carrying such products. What about the patients that have lung disease, or patients who simply do not wish to smoke? So are we supposed to write to our legislative leaders to have this changed?

  6. Dr. Patel says:

    This might be as good as a spot as any to voice some common or frequent concerns voiced by my patients. First and foremost, why does the Dept of Health have the highest registration fee in the country? If you account for the cost of medicine, none of which is reimbursed by health insurance, and the registration fee, along with physician visits, this program appears to be made only for those with means. The 25 mile rule is also a bit frustrating because some patients do not have the financial or transportation means to get this medicine from a dispensary. Lastly, is an issue of DUI and whether or not patients can operate a vehicle the day after using. They may still have metabolites in their system, and are not under the influence of cannabis/marijuana. But they may still get a DUI for it.

  7. Will Humble says:

    When it comes to criminal prosecution for possession- it doesn’t matter what I think- it matters what law enforcement, prosecutors, and jurys think. This lawsuit may help clear up the issue.

  8. Tommy says:

    It does not matter what police think, it is not their job to interpret the law it’s their job to enforce it. The law states in plain as day 3rd grader English. Useable marijuana means any mixture or preparation thereof. ANY Mr. Humble, you and the prosecutors have a clear as day bias against marijuana because of financial and racist reasons. This is our medicine we are the people you work for us!

  9. Dr. Patel says:

    I know there is a lot of frustration over the interpretation of the law, but please keep in mind AZDHS is not responsible for making laws. They are responsible for patient education. This technicality needs to be addressed with lawmakers. The only AZDHS issue is the $150 fee every year for essentially just issuing a card. AZDHS doesn’t want its patients getting arrested. There are certain attorneys that do not acknowledge this law and are trying to arrest patients. Hopefully this situation gets resolved, as Director Humble stated.

  10. A Citizen too says:

    with all the fees and taxes being collected off of the ‘non-profit’ sales at state run dispensaries, you’d think they could hire some lawyers to protect patients being prosecuted by prosecutors and judges in the minority of voters. can you say conflict of interest ?

  11. A Citizen says:

    Fact:
    The Constitution of the State of Arizona limits the State of Arizona to 3 Departments (i.e., executive, legislative and judicial), none allowed to perform/practice duties of other(s).

    Multiple Choice Question:
    What Department is Will Humble dba The State of Arizona’s Department of Health and Human Service’s Director in ?

    a. executive
    b. legislative
    c. judicial
    d. none of the above, Will Humble exercises his personal administrative {(executive – enforcing law), (legislative- writing law) and (judicial – interpreting law) combined} authority (a 1st Amendment religion virtually controlled by members of the State Bar of Arizona virtually controlling all things in the State of Arizona) through, above and over the Constitution of the State of Arizona for his own profit and personal gain.

    comment provided and posted, not submitted

  12. do you have a site to the lawsuit? I would like to see the complaint if possible. thank you,

  13. Keith says:

    Ok guys, next person who posts a quadrillion question-marks needs to step away from the keyboard. On another note, why hasn’t the “Important Dates” section on the front page of Medical Marijuana been updated in two years????

    http://www.azdhs.gov/medicalmarijuana/dates

  14. Arlin Troutt says:

    Mr. Humble as you may know 5 yr. Old Zander Welton had a court hearing on February 14, 2014 also in front of Judge Katherine Cooper. Zander’s parents were being threatened with arrest by County Attorney Bill Montgomery if they gave Zander the marijuana oil he needs for his seizures. Judge Cooper ruled on that issue this morning in Zander’s favor. She also set up the perfect storm of litigation to hold you accountable for you outrageous and destructive interpretations of the Arizona Medical Marijuana Act (AMMA) The pain, suffering, death and other damages that have occurred as a result of these continuing incoherent interpretations of the AMMA language. You and Mr. Mongomery have been warned repeatedly about playing games with this law yet you continue down the illegal path as if you don’t understand the damage you are doing or the laws you are ignoring and violating.
    I am preparing a lawsuit that will not be like the others. You have an opportunity to talk to me about this and save the taxpayers a lot of legal fees and serious legal problems for yourself. You have stepped outside your ream of authority and found yourself on the wrong side of the law, history and the citizens of Arizona and the United States of America. What you have done goes past the point of punitive damages. I’m giving you the opportunity to get some really good advice and help get you on the right side of the law, science, medicine and history.

  15. Farrok says:

    Mr. Humble:

    What I find interesting is that 400,000 + Illegal border crossers invade Arizona every year and the State of Arizona seem unable or unwilling to stop this flow, but they seem to have no trouble hassling Medical Marijuana users. The State of Arizona wrings its hands and chews the rug over the 25 mile rule all the time while allowing a full out invasion from Mexico?

    In my analysis the State can garner fines and throw Arizona Citizens into jail while they sit on their hands as an invasion from Mexico occurs?

    These invaders from Mexico receive Food, Medicine, Shelter and other forms of support and shelter while Arizona Citizens can’t afford the medicine that is saving their very lives and the State prevents them from growing it for their own use?

    The 25 mile rule is as it is in Prop 203 says nothing about no being able to grow your own Cannabis whatsoever. The 25 mile rule is an attempt to control the production of Medical Cannabis and funnel money via taxation into the State Treasury while letting the sick and ill expire.

    Also, it’s my opinion that the 25 mile rule is discriminatory as it discriminates based on physical location; somewhat like a Bank red lining an area of a town or state and will not lend money to that physical location. This red lining has been deemed discrimination but not the 25 mile rule?

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