from the Superior Court in La Paz County No. S1500CR201600241
The Honorable Samuel E. Vederman, Judge (retired)
County Attorney's Office, Parker By Joshua C. Smith
Counsel for Appellant
Coolidge Law Firm P.L.L.C., Chandler By Todd K. Coolidge
Counsel for Appellee
Paul J. McMurdie delivered the opinion of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Jennifer B.
The State appeals the superior court's order dismissing
the State's indictment against Stanley K. Kemmish, Jr. We
hold that under Arizona Revised Statutes ("A.R.S.")
section 36-2804.03(C), a physician's recommendation
letter issued pursuant to California's Compassionate Use
Act is equivalent to a registry identification card issued to
an Arizona resident under Arizona's Medical Marijuana Act
("Act") and a visiting qualifying patient, as
defined by the Act, is entitled to possess and use medical
marijuana in Arizona. Accordingly, we affirm the superior
court's dismissal of the indictment.
AND PROCEDURAL BACKGROUND
On August 24, 2016, two Arizona Department of Public Safety
officers stopped Kemmish, a California resident, for failing
to have required headlamps. During the traffic stop, the
officers noticed a marijuana odor emanating from the vehicle
and observed a white pipe with black residue in plain view.
The officers conducted a search of Kemmish's vehicle, and
he admitted the pipe was his. He also told the officers he
had medical-grade marijuana in the vehicle that he purchased
in California. The officers found the marijuana and
marijuana/THC wax in the vehicle. The officers asked Kemmish
whether he had a medical marijuana card. Kemmish told the
officers he had a document permitting him to purchase medical
marijuana in California, and showed the officers a
physician's recommendation letter obtained pursuant to
California's Compassionate Use Act. The physician's
recommendation letter stated that in the physician's
"professional opinion, [Kemmish] would significantly
benefit from the use of medical marijuana, " and
"approve[d] the use of cannabis as medicine."
The State indicted Kemmish on one count of possession of
narcotic drugs (THC wax), one count of possession of
marijuana, and one count of possession of drug paraphernalia.
Kemmish moved to dismiss the indictment with prejudice,
arguing that under the Act his physician's recommendation
letter allowed him to possess the THC wax and marijuana in
Arizona. After oral argument, the superior court granted the
motion and dismissed the charges against Kemmish. The State
timely appealed, and we have jurisdiction pursuant to A.R.S.
We review a superior court's decision to grant a motion
to dismiss for an abuse of discretion, State v.
Rodriguez, 205 Ariz. 392, 395, ¶ 7 (App. 2003), but
review questions of statutory interpretation de novo,
State v. Gear, 239 Ariz. 343, 345, ¶ 11 (2016).
Arizona and California's Medical Marijuana
Arizona voters enacted the Act, A.R.S. §§ 36-2801
to -2819, by ballot initiative in 2010. Gear, 239
Ariz. at 344, ¶ 2. The Act "authorizes medical use
of marijuana and immunizes qualified patients . . . from
criminal prosecution in certain circumstances relating to the
purchase and possession of marijuana." Parsons v.
ADHS, 242 Ariz. 320, 324, ¶ 14 (App. 2017); see
also A.R.S. § 36-2811(B). Under the Act, a
qualifying patient may apply to the Department of Health
Services ("Department") for a registry
identification card by submitting a written certification
issued by a physician. A.R.S. § 36-2804.02(A). A written
certification must specify the patient's debilitating
medical condition,  be signed by the physician, and state
"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 associated with the . . . condition." A.R.S.
§ 36-2801(18). A "qualifying patient" is a
"person who has been diagnosed by a physician as having
a debilitating medical condition." A.R.S. §
The Act also gives "visiting qualifying
patients" the same presumptions and immunities as a
qualifying patient with an Arizona registry identification
card. See A.R.S. § 36-2804.03(C); State v.
Abdi,236 Ariz. 609, ...