The arrest of Gary Ferguson and others by the Gilbert Police Department raises the question of whether an Arizona medical marijuana patient cardholder can sell marijuana to another person who is licensed by the Arizona Department of Health Services as a medical marijuana patient or caregiver. Several people have been or will be arrested as a result of Mr. Ferguson’s operation of the Medical Marijuana Advocacy Group where card-holding Arizona medical marijuana patients were able to gather to smoke pot and sell marijuana to other licensed patients. Mr. Ferguson told a reporter that he believes that Arizona Revised Statutes Section 36-2815 authorizes Arizona licensed patients sell marijuana to other Arizona licensed patients. For more on this arrest, see “Gilbert police raid of medical-marijuana group raises questions.”
Arizona Revised Statutes Section 36-2815.C states:
“Any cardholder who sells marijuana to a person who is not allowed to possess marijuana for medical purposes under this chapter shall have his registry identification card revoked, and shall be subject to other penalties for the unauthorized sale of marijuana and other applicable offenses.”
Unfortunately for those arrested in the Medical Marijuana Advocacy Group raid, this statute does not say that Arizona medical marijuana patients may sell marijuana to other licensed Arizona medical marijuana patients. Nor does this statute authorize caregivers to sell marijuana to other caregivers or patients.
The issue of a licensed patient or caregiver supplying marijuana to a third party is addressed in Arizona Revised Statutes Section 36-2811.B, which states:
“A registered qualifying patient or registered designated caregiver is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege, including any civil penalty or disciplinary action by a court or occupational or professional licensing board or bureau . . . For offering or providing marijuana to a registered qualifying patient or a registered designated caregiver for the registered qualifying patient’s medical use or to a registered nonprofit medical marijuana dispensary if nothing of value is transferred in return and the person giving the marijuana does not knowingly cause the recipient to possess more than the allowable amount of marijuana.”
This statute is a safe harbor for licensed Arizona medical marijuana patients who supply marijuana to other licensed Arizona medical marijuana patients ONLY IF THE SUPPLIER GETS NOTHING OF VALUE from the receipient. If the supplier receives any money or any property of value, Arizona’s medical marijuana laws do not protect the supplier from prosecution for violating Arizona state or local marijuana laws. Nor will the supplier avoid prosecution under federal law because the U.S. Attorney and many of the state U.S. Attorneys including Arizona’s Dennis Burke have said the U.S. will not generally spend U.S. resources prosecuting patients and caregivers who comply with the laws of a state like Arizona that have legalized medical marijuana. An Arizona licensed medical marijuana patient who sells marijuana to another Arizona licensed patient is not complying with Arizona’s medical marijuana laws and could therefor be prosecuted for violating federal marijuana laws.
