Darrah v. Hon. mcclennen/mesa
1 CA-SA 14-0054
| Ariz. Ct. App. | Aug 31, 2017Background
- Darrah, a registered Arizona medical marijuana patient, was charged with two counts of DUI: (A)(1) driving while impaired and (A)(3) driving with a prohibited drug or its metabolite in his body.
- Blood test showed 4.0 ng/ml THC.
- Municipal court granted the State’s motion in limine excluding evidence that Darrah possessed a medical-marijuana registry card as irrelevant to the (A)(3) charge.
- Jury acquitted on the impairment count (A)(1) but convicted on the (A)(3) metabolite/count; superior court affirmed.
- After the Arizona Supreme Court decided Dobson (recognizing a limited AMMA affirmative defense), this court reconsidered whether exclusion of AMMA evidence was erroneous and harmless.
- Record included Darrah’s testimony that he was not impaired and cross-examination of the State’s expert, who conceded the 4.0 ng/ml level could not be said with certainty to have caused impairment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AMMA evidence (possession of registry card) is admissible in an (A)(3) prosecution | Darrah: AMMA permits presenting evidence that use was authorized and concentration insufficient to impair; card evidence is relevant to affirmative defense | State: AMMA does not bar (A)(3) prosecution; any AMMA defense requires proof the concentration would not cause impairment in any person and exclusion was proper | Court: AMMA-related evidence is admissible; Dobson creates a limited affirmative defense and exclusion of the registry card here was erroneous and not harmless |
| What proof suffices for the Dobson affirmative defense (authorization + insufficient concentration) | Darrah: non-expert, individualized evidence (including his testimony and cross-exam of State’s expert) can establish lack of impairment | State: must show objectively insufficient concentration (possibly via expert); mere testimony insufficient | Court: Defendant bears preponderance burden, but may meet it with non-expert evidence; expert testimony not always required |
| Whether exclusion of AMMA evidence was harmless error | Darrah: exclusion prevented jury from considering affirmative defense supported by evidence (Darrah’s testimony and expert concessions) | State: record lacked proof that concentration was insufficient; thus error harmless | Court: Not harmless—there was more than a scintilla of evidence on both elements if card evidence admitted |
| Scope of required showing for concentration element (individual actual impairment vs. abstract threshold) | Darrah: defense requires showing he was not actually impaired (individualized) | State: defense requires proof concentration insufficient to cause impairment in any person | Court: Follows Dobson/Ishak majority—focus on actual impairment of the defendant; not an abstract universal threshold |
Key Cases Cited
- Dobson v. McClennen, 238 Ariz. 389 (2015) (AMMA provides limited affirmative defense to (A)(3): authorized use plus concentration insufficient to cause impairment)
- Ishak v. McClennen, 241 Ariz. 364 (App. 2016) (affirmed Dobson’s defense scope; defendant may use non-expert, individualized evidence to show lack of impairment)
- Darrah v. McClennen, 236 Ariz. 185 (App. 2014) (prior panel affirmed conviction; later vacated for reconsideration in light of Dobson)
- State v. Strayhand, 184 Ariz. 571 (App. 1995) (defendant entitled to jury instruction on any legally recognized defense supported by evidence)
- State ex rel. Montgomery v. Harris, 234 Ariz. 343 (2014) (noting cardholder generally knows whether he is impaired)