Ignoring a threatened lawsuit, a Senate panel voted Monday to let police destroy marijuana they have seized, even if it was taken wrongly from a medical marijuana patient.
SB 1414 is designed to address situations where police come into custody of marijuana and later learn that the person was a medical marijuana patient and allowed to have it. Under the law as it has been interpreted by the state Court of Appeals, police are now required to give it back.
Sen. Kimberly Yee, R-Phoenix, said she believes that puts police in the position of violated the federal Controlled Substances Act which continues to make marijuana illegal. Her legislation would let officers destroy the drugs once any investigation was completed, even if the person was entitled to have them in the first place.
The 5-3 party-line vote by the Judiciary Committee came even after Anjali Abraham, lobbyist for the American Civil Liberties Union, warned lawmakers that they are courting legal action.
Abraham pointed out the Arizona Constitution generally does not permit legislators to tinker with voter-approved measures. She said the only changes they can make are those which "further the purpose'' of the underlying law.
In this case, Abraham pointed out, the 2010 initiative specifically says that marijuana held by those who are entitled either to sell it as dispensary operators or possess it as patients "is not subject to seizure or forfeiture.'' Abraham said Yee's legislation not only does not advance the intent of the voters but actually works contrary to what they wanted.
Yee was unconvinced, saying she simply wants to plug a "loophole'' in the law.
The loophole was discovered after Valerie Okun, a California woman was stopped by Border Patrol just inside the Arizona border. Agents found hashish on her and turned them over to the Yuma County Sheriff's Department.
It turns out Okun was a registered medical marijuana user. And the Arizona Medical Marijuana Act says those from other states with similar laws are subject to the same protections against prosecution in state courts.
So while the sheriff's department dropped the case, it refused to return her drugs. She sued and the appellate court ruled she's entitled to get them back.
Kim MacEachern who represents the Arizona Prosecuting Attorneys Advisory Council, acknowledged the court ruling. But she said it provides little comfort to police agencies who are being asked, in essence, to violate federal laws by giving out drugs.
MacEachern said the appellate court, in its ruling, said there is virtually no chance that the federal government is going to prosecute any law enforcement agency for returning someone's medical marijuana. But she told lawmakers that misses the point.
"The fact remains, we tell our children when they're growing up, 'the law is the law and you should obey the law even when someone's not looking,' '' MacEachern said.
"In this case, law enforcement is being told to disobey the federal law because they probably aren't going to get in trouble for it anyway,'' she continued. "That adds to their identity crisis.''
MacEachern told lawmakers that not all situations may be as cut and dried as the Okun case.
She pointed out that sometimes police seize growing marijuana plants.
"Are we supposed to water the plants and keep the plants viable in case we have to return them at the end of the case?'' she asked.
Abraham said there's a simple answer for that: Once police see an individual has a medical marijuana card they should immediately return the plants. She said that would take away the need for them to worry about keeping them alive.
MacEachern suggested an alternate option: Let police destroy the plants but then give the rightful owners the same ability to seek compensation when any other seized property is wrongfully destroyed: seek financial compensation.
Sen. Steve Gallardo, D-Phoenix, said he did not support Proposition 203 when it was approved in 2010. He said, though, the voters approved it and lawmakers should not try to undermine its provisions.
But Rep. Rick Murphy, R-Glendale, said one problem with voter-crafted laws is that there are unforeseen consequences. He said it is the responsibility of the Legislature to make those fixes.
That law allows individuals with a doctor's recommendation to get a card from the state allowing them to obtain up to 2 1/2 ounces of marijuana every two weeks. It also envisions a statewide network of dispensaries to sell the drugs.
The bill now goes to the full Senate.