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State v. Gear

Supreme Court of Arizona

May 6, 2016

State of Arizona, Appellant,
v.
Robert Gear, Appellee.

Appeal from the Superior Court in Navajo County The Honorable Ralph E. Hatch, Judge No. CR-2013-00089

Order of the Court of Appeals, Division One 236 Ariz. 289, 339 P.3d 1034 (App. 2014)

Brad Carlyon, Navajo County Attorney, Galen H. Wilkes (argued), Deputy Navajo County Attorney, Holbrook, Attorneys for State of Arizona

Kimberly A. Kent (argued), Kent Law Group, PLLC, Phoenix, Attorney for Robert Gear

William G. Montgomery, Maricopa County Attorney, Bruce P. White, Joseph J. Branco, and Diane Meloche, Deputy County Attorneys, Phoenix, Attorneys for Amicus Curiae Maricopa County Attorney

Mark Brnovich, Arizona Attorney General, John R. Lopez IV (argued), Solicitor General, Maria M. Syms, Assistant Attorney General, Phoenix, Attorneys for Amicus Curiae Arizona Attorney General Mark Brnovich

JUSTICE BOLICK authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES BRUTINEL and TIMMER joined.

OPINION

BOLICK JUSTICE

¶1 This case presents the question of whether the Arizona Medical Marijuana Act ("AMMA" or "the Act") immunizes a physician against prosecution for falsely attesting that he reviewed a patient's medical records from the previous twelve months before providing a written certification authorizing medical marijuana use. We hold that AMMA does not grant such immunity.

I. BACKGROUND

A. Arizona Medical Marijuana Act

¶2 Arizona voters enacted AMMA, A.R.S. § 36-2801, et seq., by ballot initiative in 2010 (Proposition 203). The Act provides that a "qualifying patient" diagnosed with a "debilitating medical condition" may obtain a registry card from the Arizona Department of Health Services ("DHS"), and thereby obtain immunity from prosecution for the acquisition, possession, and use of medical marijuana under the statutory conditions. See A.R.S. §§ 36-2801(3), (13), -2804.02, -2811(B).

¶3 To register with DHS, a qualified patient must first obtain a physician's "written certification, " which AMMA defines as:

a document dated and signed by a physician, stating that in the physician's professional opinion the patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana to treat or alleviate the patient's debilitating medical condition or symptoms ...

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