The Arizona Court of Appeals has ruled the Yuma County Sheriff’s Office must give back marijuana that was seized from a California woman who had permission to use the drug for medical purposes.
Valerie Okun was stopped in 2011 at a Border Patrol checkpoint near Yuma. Authorities seized marijuana and other contraband from her car. She was cited for violating Arizona drug laws and the case was turned over to Yuma County officials. The charges were dismissed after she showed she was authorized to possess marijuana under California law.
The Arizona Medical Marijuana Act honors other states’ medical marijuana cards and allows them to possess up to 2 1/2 ounces of the drug.
Okun asked the court to return the three-fourths of an ounce of marijuana that was seized, but while the judge agreed, the Yuma County Sheriff’s Office refused.
Attorneys for the sheriff said Arizona law requires any marijuana seized in connection with a drug offense be forfeited to the state. But Johnsen said the lawyers are missing the point: Okun had a right under Arizona law to possess the drug in the first place, a point which county attorneys concede.
After the charges were dropped, Okun asked sheriff’s officials to return her marijuana, and the Superior Court granted her request. But the Yuma County sheriff argued he could not return the pot because doing so may violate the federal Controlled Substances Act, which makes possession, sale or use of marijuana a crime.
The appellate court affirmed Thursday the Superior Court’s ruling and required the sheriff to return the marijuana to Okun, saying it was not subject to forfeiture under state law.
“Moreover, the Sheriff is immune from prosecution under the federal law for acts taken in compliance with a court order,” the three-judge panel wrote.
The appellate court would not consider the state’s argument that the state’s medical marijuana law is pre-empted by federal law, “We do not question the general proposition that when federal law actually conflicts with state law, federal law controls,” the opinion said.
A spokesman for the Yuma County Sheriff’s Office said officials are reviewing the opinion.
Voters in 2010 passed the medical-marijuana measure to allow people with certain debilitating medical conditions — including chronic pain, cancer and muscle spasms — to use marijuana. They must obtain a recommendation from a physician and register with the state Department of Health Services, which oversees the program and issues identification cards to qualified patients and caregivers.
Patients are limited to purchasing 2 1/2 ounces every two weeks. More than 33,000 people have permission to use medical marijuana in Arizona.