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State v. Gear

Court of Appeals of Arizona, First Division

November 20, 2014

STATE OF ARIZONA, Appellant,
v.
ROBERT GEAR, Appellee

Appeal from the Superior Court in Navajo County. No. S0900CR201300089. The Honorable Ralph E. Hatch, Judge.

For Appellant: Galen Wilkes, Brad Carlyon, Navajo County Attorney's Office, Holbrook.

For Appellee: Kimberly A. Kent, David J. Klink, Kent Law Group PLLC, Phoenix.

Presiding Judge Patricia K. Norris delivered the Opinion of the Court, in which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined.

OPINION

Page 1035

[236 Ariz. 290] Patricia K. Norris, Judge.

[¶1] Appellant State of Arizona charged Defendant/Appellee Robert L. Gear Jr., N.M.D., D.C., with forgery and fraudulent schemes and artifices for falsely stating he had reviewed a confidential informant's medical records in certifying the informant for access to medical marijuana. Dr. Gear moved to dismiss the indictment, arguing the Arizona Medical Marijuana Act (" AMMA" ) granted him immunity from criminal prosecution. The superior court agreed, and the State appealed.

[¶2] The fundamental issue presented in this appeal is whether the AMMA bars the State from prosecuting a physician for allegedly misrepresenting (negligently or otherwise) he had reviewed the last 12 months of a patient's medical records from other treating physicians when certifying that " in [his] professional opinion the patient [was] likely to receive therapeutic or palliative benefit from the medical use of marijuana." See Ariz. Rev. Stat. (" A.R.S." ) section 36-2801(18) (2014).[1] We hold it does.

FACTS AND PROCEDURAL HISTORY

I. The Arizona Medical Marijuana Act

[¶3] A majority of Arizona voters enacted the AMMA by ballot initiative in 2010. See

Page 1036

[236 Ariz. 291] Proposition 203, 2011 Ariz. Sess. Laws 2724, 2724-50 (codified at A.R.S. § § 36-2801 to 36-2819 (2014)). The " purpose of [the AMMA] is to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution, criminal and other penalties and property forfeiture if such patients engage in the medical use of marijuana." Proposition 203, § 2(G), 2011 Ariz. Sess. Laws at 2725. In furtherance of this aim, the AMMA provides that a " qualified patient" with a " debilitating medical condition" may obtain a registry identification card from the Arizona Department of Health Services (" DHS" ) and with it, immunity from State prosecution for marijuana acquisition, possession, and use within the AMMA's limits. See A.R.S. § § 36-2801(3), (13), -2804.02, -2811(B). To facilitate the medical use of marijuana, the AMMA also immunizes physicians from prosecution for certifying patients for access to medical marijuana as discussed in more detail below. See A.R.S. § 36-2811(C).

[¶4] Under the AMMA, a patient applies for a registry card by submitting, inter alia, a physician's written certification. See A.R.S. § § 36-2801(18), -2804.02(A)(1). By regulation, DHS requires patients to submit the written certification on a DHS-provided form (" DHS Form" ).[2] Ariz. Admin. Code (" A.A.C." ) R9-17-202(F)(5)(2012). The DHS regulations require the certifying physician to identify the patient's " debilitating medical condition" and certify he or she has taken certain steps to confirm the diagnosis, including reviewing the past 12 months of the patient's medical records from other treating physicians and checking the patient's profile on the Arizona Board of Pharmacy Controlled Substances Prescription Monitoring Program database. See id. at (c)-(i). The regulations also require the certifying physician to attest that in his or her " professional opinion, the qualifying patient is likely to receive therapeutic or palliative benefit from the . . . medical use ...


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