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State v. Kemmish

Court of Appeals of Arizona, First Division

March 15, 2018


         Appeal from the Superior Court in La Paz County No. S1500CR201600241 The Honorable Samuel E. Vederman, Judge (retired)

          La Paz 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

          Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Jennifer B. Campbell joined.


          McMURDIE, Judge:

         ¶1 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.


         ¶2 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."

         ¶3 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. § 13-4032(1).


         ¶4 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).

         A. Arizona and California's Medical Marijuana Statutes.

         ¶5 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[1] 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, [2] 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. § 36-2801(13).

         ¶6 The Act also gives "visiting qualifying patients"[3] 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, ...

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