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State v. Tagge

Court of Appeals of Arizona, First Division

May 9, 2019

STATE OF ARIZONA, Appellee,
v.
ELENA CHRISTINA TAGGE, Appellant. STATE OF ARIZONA, Appellee,
v.
MATTHEW CARL TAGGE, Appellant.

          Appeal from the Superior Court in Maricopa County No. CR2015-113021-001 CR2015-030181-001 The Honorable Michael D. Gordon, Judge

         COUNSEL

          Arizona Attorney General's Office, Phoenix By Terry M. Crist, III Counsel for Appellee

          Bain & Lauritano, PLC, Glendale By Sheri M. Lauritano Counsel for Appellant Elena Tagge

          Maricopa County Public Defender's Office, Phoenix By Nicholaus Podsiadlik Counsel for Appellant Matthew Tagge

          Judge Kent E. Cattani delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen joined. Judge Peter B. Swann specially concurred.

          OPINION

          CATTANI, JUDGE

         ¶1 Matthew and Elena Tagge appeal their convictions for illegal possession or use of marijuana and drug paraphernalia. The Tagges maintain that, because they held cards entitling them to possess and use marijuana under the Arizona Medical Marijuana Act ("AMMA"), they were immune from prosecution. We hold to the contrary that, because immunity under the AMMA does not extend to smoking marijuana in a public place, the Tagges could be prosecuted for doing so in their car in a public parking lot. Accordingly, and for reasons that follow, we affirm.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 The facts are undisputed. Bound for a music festival in Mesa one afternoon, the Tagges parked in a commercial lot near the concert venue. The lot was owned by the City of Mesa and had been leased to a radio station for parking for the event. The Tagges pulled up next to two undercover Mesa police officers, who watched as the Tagges sat in their car and smoked marijuana from a pipe they passed between them. Although the windows of the Tagges' car were up, police saw smoke coming from the pipe, ordered them out of the car and seized the pipe, along with approximately one gram of marijuana.

         ¶3 Each of the Tagges was a "qualifying patient" under the AMMA. See Ariz. Rev. Stat. ("A.R.S.") §§ 36-2801(13), -2811. At trial, they argued that they were immune from prosecution under § 36-2811, which generally immunizes AMMA cardholders' marijuana use, subject to several Opinion of the Court exceptions, including one at issue in this case: smoking in a public place. See A.R.S. § 36-2802(C)(2). The superior court rejected the Tagges' argument, finding that although they were inside a closed car, they were in a public place and were not entitled to immunity. After a bench trial, the court convicted them of misdemeanor marijuana and paraphernalia offenses and imposed six months' unsupervised probation. The Tagges each filed a timely appeal.

         DISCUSSION

         ¶4 By law, the State may not subject a qualifying patient to arrest or prosecution for "use of marijuana pursuant to [the AMMA]." A.R.S. § 36-2811(B)(1). This protection "broadly immunizes qualified patients, carving out only narrow exceptions from its otherwise sweeping grant of immunity." Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 122, ¶ 8 (2015). Among the exceptions: A qualifying patient may not possess or use marijuana "[o]n a school bus," "[o]n the grounds of any preschool or primary or secondary school," or "[i]n any correctional facility." A.R.S. § 36-2802(B). And a qualifying patient may not smoke marijuana "[o]n any form of public transportation" or "[i]n any public place." A.R.S. § 36-2802(C). The dispositive issue here is whether the "public place" exception to immunity applies to smoking inside a private vehicle in a public parking lot.

         ¶5 This court reviews questions of statutory interpretation de novo. Reed-Kaliher, 237 Ariz. at 122, ¶ 6. In interpreting statutes, we give special care "to give effect to every clause and word." Premier Physicians Grp., PLLC v. Navarro,240 Ariz. 193, 196, ¶ 16 (2016). "[W]e look to the statute as a whole, and construe together all parts of the statute relating to the same subject." Ariz. Health Care Cost Containment Sys. v. Bentley,187 Ariz. 229, 232 (App. 1996); see J.D. v. Hegyi,236 Ariz. 39, 41, ΒΆ 6 (2014) ("Words in statutes . . . cannot be read in isolation from the context in which they are used."). When a term in a statute may have differing meanings, we "consider[] secondary factors, such as the ...


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