PHOENIX -- The right of patients to smoke marijuana that has been recommended by a doctor for medical conditions cannot be taken away by a judge, even if the person has been convicted of a crime, the Arizona Supreme Court ruled Tuesday.
In a pair of unanimous decisions the justices rejected arguments by prosecutors in two separate cases that denying someone the ability to use medical marijuana is a legitimate condition for probation. Justice Ann Scott Timmer, writing one of the rulings, said that ignores the wishes of voters when they approved the Arizona Medical Marijuana Act in 2010.
Justice Rebecca Berch, writing the other, not only reached the same conclusion but rejected arguments by Cochise County prosecutors that federal marijuana laws preempt what voters enacted.
Cochise County Attorney Brian McIntyre said he thinks the justices missed the point of why a judge may conclude a criminal defendant should not be smoking marijuana, for any reason, while on probation.
"I think it's a mistake to remove completely the power from judges to legitimately review a probationer's medical information and their use of certain substances,'' he said. "The trial court's usually in the best position to this particular defendant in terms of what they do or don't need.''
McIntyre said he is weighing his legal options.
So is Yavapai County Attorney Sheila Polk. She said she may seek U.S. Supreme Court review specifically on the question of whether federal law trumps what voters here approved.
Timmer said the 2010 law is clear: Arizonans who have certain medical conditions and a doctor's recommendation can obtain an ID card allowing them to possess and use medical marijuana "without fear of arrests, prosecution or penalty in any manner.'' The same law, the justice said, says a patient cannot be denied "any right or privilege ... by a court'' for the patient's use of the drug.
Berch noted the law about barring the use of marijuana contains an exception for drugs as "lawfully administered by a health care practitioner.'' And that, she said, means there is a difference between the illicit use of marijuana and the lawful use of the drug, as Arizona law requires a doctor's recommendation to get an ID card.
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The court also brushed aside the argument by Doyle Johnstun, the chief criminal deputy Cochise County attorney, that it does not matter what Arizona law says.
Johnstun pointed out that defendant Reed-Kaliher, as a condition of probation, was required to "obey all laws.'' And that, he argued, also means the Reed-Kaliher can be forced to obey federal laws that make it illegal for anyone to use marijuana for any purpose.
Berch was not buying it.
"Federal law does not require our courts to enforce federal law, and Arizona law does not permit them to do so in contravention of AMMA,'' Berch wrote. "Thus, while the court can impose a condition that probationers not violate federal laws generally, it must not include terms requiring compliance with federal laws that prohibition marijuana use pursuant to AMMA.''
And Berch said nothing in the federal Controlled Substances Act shows that Congress intended to preempt states from having their own drug laws.
Polk disagreed, saying she thinks the federal law is supreme.
"These laws constitute a comprehensive regulatory scheme that is designed to ensure the safety and safe delivery of this country's medicine,'' Polk said. She said it is no more legal for voters here to allow the sale and use of marijuana than if Arizonans decide to allow the manufacture and distribution of heroin.
Polk said her office added the "no-marijuana'' provision to plea agreements after there was a big increase in probationers obtaining medical marijuana cards.
"My goal, and the goal of the system, is to set convicted felons up to succeed, to find employment and to turn their lives around,'' she said. "Marijuana is not part of that equation.''