for Special Action from the Superior Court in Maricopa County
No. LC2016-000140-001 Mesa Municipal Court No. 2014046117 The
Honorable Crane McClennen, Judge, Retired
ACCEPTED; RELIEF GRANTED
Ishak, Mesa Petitioner.
City Prosecutor's Office, Mesa By W. Craig Jones Counsel
for Real Party in Interest.
Presiding Judge Diane M. Johnsen delivered the opinion of the
Court, in which Judge Lawrence F. Winthrop joined.
We address in this special action the affirmative defense a
medical marijuana cardholder may raise when charged with
driving under the influence pursuant to Arizona Revised
Statutes ("A.R.S.") section 28-1381(A)(3)
(2016). The Arizona Medical Marijuana Act
("AMMA") grants an affirmative defense to a
defendant charged under § 28-1381(A)(3) who can show he
or she is authorized to use medical marijuana and "that
the concentration of marijuana or its impairing metabolite in
[his or her body] was insufficient to cause impairment."
Dobson v. McClennen, 238 Ariz. 389, 393, ¶ 23
(2015). We grant relief to the petitioner in this case
because the municipal court erred when it precluded evidence
that he has an AMMA card. We vacate the petitioner's
conviction and remand for further proceedings consistent with
AND PROCEDURAL HISTORY
Police stopped petitioner Nadir Ishak at seven p.m. one day
after they saw his car drift several inches into the next
lane. An officer smelled marijuana as he approached
Ishak's car. Ishak told the officer he had been talking
to his passenger and when he realized his car had moved into
the other lane, he guided it back in place. The officer
testified that when Ishak removed his sunglasses, he saw that
Ishak's eyes were bloodshot and "watery." In
response to the officer's query about when he had last
smoked marijuana, Ishak replied that he had done so upon
awakening that morning. Ishak performed several field
sobriety tests, and during one of the tests, he experienced
"body tremors and eye tremors."
The State charged Ishak with driving while "impaired to
the slightest degree" under A.R.S. § 28-1381(A)(1)
and driving with marijuana or its metabolite "in [his]
body" under A.R.S. § 28-1381(A)(3). Before trial,
the State moved in limine to preclude evidence that
Ishak possessed a medical marijuana card. Ishak objected,
arguing the jury should not be misled "into thinking
that it's actually illegal for him to ingest"
marijuana. In a ruling entered before the supreme court
decided Dobson, the municipal court granted the
State's motion, reasoning that evidence of Ishak's
medical marijuana card was irrelevant to the charges against
At trial, the arresting officer related that he had seen
Ishak's car drift into the adjacent lane and described
how Ishak performed on the field sobriety tests. The State
also called an expert who testified that a sample of
Ishak's blood taken after the stop contained a
concentration of 26.9 ng/ml of the marijuana metabolite THC.
The court, however, sustained Ishak's objection that the
State's expert lacked foundation to testify whether those
results showed a THC level "that causes impairment in
the person." For his part, Ishak called an expert who
testified there "is no consensus" about the
concentration of THC that causes impairment. As for the
reading of 26.9 ng/ml, Ishak's expert testified,
"It's a high number and it can impair some people,
but I can't tell you that number . . . will impair all
The jury acquitted Ishak of driving while impaired under
§ 28-1381(A)(1) but convicted him of driving while
marijuana or its metabolite was in his body under §
28-1381(A)(3). The municipal court sentenced Ishak to 180
days' incarceration, suspending half the term.
By the time Ishak appealed his conviction to the superior
court, our supreme court had decided Dobson. Based
on that case, the superior court concluded that even if the
municipal court erred by barring Ishak from mentioning his
medical marijuana card, the error was harmless because Ishak
has "not shown that he would have been able to obtain an
expert who would have been willing to testify that [he] would
not have been impaired at 26.9 ng/ml."
We accept jurisdiction of Ishak's petition for special
action because he has "no equally plain, speedy, and
adequate remedy by appeal, " Ariz. R.P. Spec. Act. 8(a),
and because his case presents "an issue of statewide
importance potentially affecting numerous DUI cases, "
Cicoria v. Cole,222 Ariz. ...