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State v. Liwski

Court of Appeals of Arizona, Second Division

August 28, 2015


Special Action Proceeding. Pima County Cause No. CR20133035001.

Barbara LaWall, Pima County Attorney, By Nicolette Kneup, Deputy County Attorney, Tucson, Counsel for Petitioner.

Steven R. Sonenberg, Pima County Public Defender, By David J. Euchner and Sarah L. Mayhew, Assistant Public Defenders, Tucson, Counsel for Real Party in Interest.

Vá squez, Presiding Judge authored the opinion of the Court, in which Howard, Judge and Kelly, Judge[1] concurred.


Page 606

VÁ SQUEZ, Presiding Judge:

[¶1] The State of Arizona seeks special-action review of the respondent judge's order denying the state's motion to preclude defendant Ryan Gillie from presenting a defense based on the Arizona Medical Marijuana Act (AMMA), A.R.S. § § 36-2801 through 36-2819. We accept jurisdiction, and we grant relief because the respondent incorrectly concluded Gillie may present a defense under the AMMA.

[¶2] The relevant facts are not in dispute. Gillie was charged with possession of marijuana for sale, production of marijuana, and possession of drug paraphernalia. He was arrested while carrying 3.5 ounces of marijuana, which led to the discovery of growing equipment and numerous marijuana plants at his home. Gillie is a registered designated caregiver under the AMMA for one qualifying patient and is authorized to cultivate marijuana for that patient. See § 36-2801(5). The state sought to preclude him from raising a defense based on the AMMA. The respondent judge held an evidentiary hearing, at which Gillie presented evidence that he had intended to deliver some of the marijuana he was carrying to another patient for whom he was not the designated caregiver.

[¶3] The state argued that Gillie was not entitled to protection under the AMMA because he had been carrying more than the permitted 2.5 ounces of marijuana per qualified patient pursuant to § § 36-2801(1)(b)(i) and 36-2811(B)(2). Gillie responded that he was permitted to carry more than 2.5 ounces pursuant to § 36-2811(B)(3) because he had intended to deliver the excess marijuana to another cardholder. The respondent judge, observing " the statute is not clear," concluded Gillie was permitted to provide " other marijuana," in excess of the 2.5-ounce per-patient limit, to cardholders. She thus denied the state's motion to preclude, stating Gillie was permitted to " present a medical marijuana defense" at trial.

[¶4] In its petition for special action, the state argues the respondent judge erred by concluding Gillie could possess marijuana in excess of 2.5 ounces and raise a medical marijuana defense. We accept special-action jurisdiction because the state has no remedy by appeal, see A.R.S. § 13-4032; Ariz. R. P. Spec. Actions 1(a), and because this " case presents a novel question of statewide importance that is also a question of law," Fuller v. Olson, 233 Ariz. 468, ¶ 5, 314 P.3d 814, 817 (App. 2013). " Special action relief is appropriate if the respondent judge has abused her discretion by committing an error of law or proceeding in excess of her legal authority."

Page 607

State v. Bernini, 230 Ariz. 223, ¶ 6, 282 P.3d 424, 426 (App. 2012).

[¶5] " We review questions of statutory interpretation de novo." Reed-Kaliher v. Hoggatt, 237 Ariz. 119, ¶ 6, 347 P.3d 136, 139 (2015). " 'Our primary objective in construing statutes adopted by initiative is to give effect to the intent of the electorate.'" Id., quoting State v. Gomez, 212 Ariz. 55, ¶ 11, 127 P.3d 873, 875 (2006). The best indicator of that intent is the statute's plain language, and, if that language is clear and unambiguous, we apply it as written. State v. Matlock, 237 Ariz. 331, ¶ 10, 350 P.3d 835, 838 (App. 2015).

[¶6] Marijuana possession and use are illegal in Arizona, but the AMMA " permits those who meet statutory conditions to use medical marijuana." Reed-Kaliher, 237 Ariz. 119, ¶ 7, 347 P.3d at 139. Pursuant to the AMMA, a designated caregiver may assist up to five patients with the medical use of marijuana and may receive reimbursement for costs incurred in providing such assistance " if the registered designated caregiver is connected to the registered qualifying patient through the [Arizona Department of Health Services] registration process." § ...

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