Ishak v. McClennen Ex Rel. County of Maricopa
241 Ariz. 364
| Ariz. Ct. App. | 2016Background
- Police stopped Nadir Ishak after observing his vehicle drift lanes; officer smelled marijuana and noted bloodshot/watery eyes and tremors during field sobriety tests.
- Blood test showed 26.9 ng/mL of THC metabolite; State called an expert to report the level but not to opine impairment from that concentration.
- Municipal court excluded evidence Ishak had an Arizona Medical Marijuana Act (AMMA) registry card.
- Jury acquitted Ishak of actual impairment under A.R.S. § 28-1381(A)(1) but convicted him under § 28-1381(A)(3) (presence of marijuana or metabolite).
- After Dobson v. McClennen was decided, Ishak sought review; the appellate court granted relief, vacating the (A)(3) conviction and remanding because excluding the AMMA card barred evidence relevant to an affirmative defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a qualifying AMMA cardholder may present evidence of authorization to use medical marijuana as part of an affirmative defense to an A.R.S. § 28-1381(A)(3) charge | Ishak: AMMA card admissible to show statutory affirmative defense under § 36‑2802(D) — presence of metabolites alone, in insufficient concentration to cause impairment, is not being "under the influence" | State: AMMA provision doesn't bar (A)(3) prosecutions; a cardholder must prove, likely by expert, that the THC concentration is insufficient to cause impairment in people generally | Court: Cardholder may present AMMA authorization and evidence relevant to whether he personally was impaired; exclusion of the AMMA card was error and reversal/remand warranted |
| Nature and quantum of proof for the AMMA affirmative defense: must defendant prove non-impairment in the abstract (people generally) or non-impairment of the defendant personally? | Ishak: defense focuses on whether the defendant was actually impaired at the time (can be proven by lay testimony, cross-exam, or expert) | State: defense requires expert proof that the measured concentration is insufficient to cause impairment generally or in any person | Court: Defense requires proof by preponderance that the concentration was insufficient to cause the defendant personally to be impaired at the time; expert testimony is not required — lay testimony and defendant's own testimony are admissible |
Key Cases Cited
- Dobson v. McClennen, 238 Ariz. 389 (2015) (AMMA provides an affirmative defense to (A)(3) when use is authorized and concentration is insufficient to cause impairment)
- State v. Harris, 234 Ariz. 343 (2014) (statute proscribes metabolites capable of causing impairment; no per se drug-level analogue to alcohol)
- Anderjeski v. City Court of Mesa, 135 Ariz. 549 (1983) (distinction between actual impairment and per se concentration-based offenses)