State of Arizona v. Robert Gear
239 Ariz. 343
| Ariz. | 2016Background
- Arizona voters enacted the Arizona Medical Marijuana Act (AMMA) in 2010, which allows qualifying patients to obtain registry cards after a physician provides a written certification that the patient is likely to benefit from medical marijuana.
- AMMA defines "written certification" to require a physician to sign only in the course of a physician-patient relationship after completing a "full assessment" of the patient’s medical history; AMMA does not define those terms.
- The Arizona Department of Health Services (DHS) regulations interpret a "full assessment" to include reviewing treating physicians’ medical records from the previous 12 months and require the physician to attest to the accuracy of information in the certification.
- Dr. Robert Gear examined a confidential informant (C.I.), certified her for medical marijuana, and signed that he had reviewed her prior 12 months of medical records and that the certification was true, though he had not reviewed those records.
- A grand jury indicted Dr. Gear for forgery and fraudulent schemes; the trial court dismissed the indictment on the ground AMMA immunized his conduct, and the court of appeals affirmed. The Arizona Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Gear) | Held |
|---|---|---|---|
| Whether AMMA immunizes a physician for false attestations on a written certification | Immunity limited to "providing" certifications, not necessarily to preparatory acts | Immunity extends to any conduct related to certification, shielding physician conduct in the certification process | AMMA does not immunize false statements; immunity protects only providing certifications or stating professional opinions, not dishonest acts beyond that scope |
| Effect of qualifier "solely" in § 36-2811(C) | "Solely" should not swallow immunity for certification activities | "Solely" supports broad immunity for all conduct related to certification | "Solely" narrows immunity; acts not based solely on protected conduct remain prosecutable |
| Whether professional-discipline-only language precludes criminal prosecution | (implicit) Professional-discipline provision suggests licensing sanctions, not exclusive remedy | Argues AMMA confines consequences to professional discipline, not criminal sanctions | Professional-discipline provision does not preclude ordinary criminal prosecution for fraud or forgery |
| Whether prosecution would unduly chill physician participation in AMMA | Concern about chilling effect on certified physicians if prosecutions allowed | Argues broad immunity necessary to protect physician participation | Court rejects chilling-effect argument as insufficient to override the statutory limitation of immunity |
Key Cases Cited
- State v. Matlock, 237 Ariz. 331, 350 P.3d 835 (App. 2015) (discussing DHS’s regulatory role under AMMA)
- Dobson v. McClennen, 238 Ariz. 389, 361 P.3d 374 (2015) (AMMA’s qualifier "solely" limits immunity and provides a limited defense, not absolute protection)
- Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 347 P.3d 136 (2015) (principles for construing ballot measures and protecting AMMA rights)
- State v. Jones, 235 Ariz. 501, 334 P.3d 191 (2014) (statutory interpretation favors reconciling potentially conflicting statutes)
- People v. Mentch, 195 P.3d 1061 (Cal. 2008) (construing medical-marijuana immunity narrowly when qualified by "sole basis")
- City of Riverside v. Inland Empire Patients Health & Wellness Ctr., Inc., 300 P.3d 494 (Cal. 2013) (narrow construction of medical-marijuana preemption/ immunity language)
- Kirby v. County of Fresno, 242 Cal. App. 4th 940 (2015) (local regulation of cultivation not preempted by medical-marijuana law)