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Ishak v. McClennen

Court of Appeals of Arizona, First Division

December 22, 2016

NADIR ISHAK, Petitioner,
v.
THE HONORABLE CRANE MCCLENNEN, Judge of the SUPERIORCOURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, CITY OF MESA PROSECUTOR'S OFFICE, Real Party in Interest.

         Petition 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

         JURISDICTION ACCEPTED; RELIEF GRANTED

          Nadir Ishak, Mesa Petitioner.

          Mesa 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.

          OPINION

          JOHNSEN, JUDGE

         ¶1 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).[1] 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 this opinion.

         FACTS AND PROCEDURAL HISTORY

         ¶2 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."

         ¶3 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 him.

         ¶4 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 people."

         ¶5 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.

         ¶6 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."

         JURISDICTION

         ¶7 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. ...


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