The parents of a brain-damaged Mesa boy have a right to ask court permission to be able to buy and administer marijuana extracts for their child, a Maricopa County Superior Court judge ruled late Friday.
Judge Katherine Cooper rejected claims by Deputy County Attorney Kenneth Mangum that Jacob and Jennifer Welton can challenge his boss' interpretation of the state's medical marijuana law only if they first are arrested. Cooper said nothing in Arizona law requires the couple “to subject themselves to the risk of criminal prosecution” before bringing their case to her.
Cooper said she wants some time to consider the issue before ruling whether the 2010 voter-approved Arizona Medical Marijuana Act allows those with the required doctor's permission to use extracts of the plant or only products that actually have pieces of the dried plant.
That distinction is critical, at least for 5-year-old Zander.
Emma Andersson, an attorney with the American Civil Liberties Union said using an extract – as opposed to grinding up the plant into Zander's food – is more than a question of convenience.
“What Zander is not getting by using only plant material is an accurate dose of his medicine that is consistent every single time and the amount of cannabidiol he is supposed to be getting,” she told the judge. That refers to a non-psychoactive element of marijuana that Zander's parents say helps control his seizures.
Hanging in the balance could be whether the state's nearly 45,000 medical marijuana cardholders are limited to using the drug only in its plant form or can obtain products ranging from the kind of tincture Zander's parents want to infusions into sodas and candy.
But Cooper suggested it might be more appropriate for her to address only Zander's needs, leaving the question of everyone else for another day.
Andersson acknowledged that possibility. In fact, she conceded that her lawsuit is specifically limited to getting help for the Weltons who have a medical marijuana card for their son.
But if Cooper rules that extracts are permissible under the 2010 law, that clearly would open the door for others to seek similar – people who Mangum referred to as “potheads” and “stoners” who really are getting the drug for recreational use only.
At the heart of the fight are provisions in the voter-approved law allowing those with a doctor's permission to obtain up to 2 1/2 ounces of marijuana every two weeks. It defines “usable marijuana” as the dried flowers of the plan "and any mixture or preparation thereof.''
The Weltons had been using a tincture made by compressing the oil and resin out of the plant.
All that changed when state Health Director Will Humble and Maricopa County Attorney Bill Montgomery said they read the law to allow use only of items that contain pieces of the plant. With the threat of prosecution, the couple stopped using the tincture and sued.
Mangum told Cooper his boss reads the term “preparation” to include doing things like baking the drug into brownies or taffy.
The couple told Capitol Media Services when they sued last year that they have tried to feed Zander dried marijuana leaves crushed into his food, but his father said that's not a real option.
“That's kind of like taking hay and chopping it up into applesauce to him,” he said, saying Zander, being 5, figures out quickly what he doesn't want. “He starts to filter it through his teeth.”
Mangum told Cooper on Friday that the couple's claim comes down to a matter of wanting a more convenient method of administering the drug because Zander “prefers” the extract to plant material. That brought an angry reaction from Andersson.
“The use of the word ‘prefer’ frankly is insulting,” she told the judge.
Andersson acknowledged that Zander is getting some help from the dried plant pieces he is being fed. But she said this is an unusual case, as part of the child's brain has been removed.
“As a result, we don't really know what Zander's potential is or where it can go,” she told Cooper. “We don't know if there would be additional improvement if he were allowed to take the type of medicine the statute allows for.”
Andersson also said Zander continues to have “breakthrough seizures,” something that might stop if he got his medicine "in the right amount with the proper dosages.''
“It's not just about preference and how he takes it,” she continued. “It's also about how much his life can improve.”
Mangum cautioned, though, that a ruling in the Welton's favor might be more far reaching to benefit what he called “potheads” and “stoners.”
“We're not referring to everybody who has a medical marijuana card,” he told the judge. Mangum said the majority of those with such state-issued cards are men in the 20 to 30 age group who are complaining of back pain, “something that is purely subjective, not able to be disproved.”
“And I would suspect there are an awful lot of medical marijuana cardholders, especially in the age range that I mentioned, that are not using it for the medicinal effect.”