State v. Gear

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZIONA, Appellant,

v.

ROBERT GEAR, Appellee.

No. 1 CA-CR 13-0852

FILED 11-20-14

Appeal from the Superior Court in Navajo County

No. S0900CR201300089

The Honorable Ralph E. Hatch, Judge

AFFIRMED

COUNSEL

Navajo County Attorney’s Office, Holbrook

By Galen Wilkes, Brad Carlyon

Counsel for Appellant

Kent Law Group PLLC, Phoenix

By Kimberly A. Kent, David J. Klink

Counsel for Appellee

STATE v. GEAR

Opinion of the Court

OPINION

Presiding Judge Patricia K. Norris delivered the Opinion of the Court, in

which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined.

N O R R I S, Judge:

¶1 Appellant State of Arizona charged Defendant/Appellee

Robert L. Gear Jr., N.M.D., D.C., with forgery and fraudulent schemes and

artifices for falsely stating he had reviewed a confidential informant’s

medical records in certifying the informant for access to medical marijuana.

Dr. Gear moved to dismiss the indictment, arguing the Arizona Medical

Marijuana Act (“AMMA”) granted him immunity from criminal

prosecution. The superior court agreed, and the State appealed.

¶2 The fundamental issue presented in this appeal is whether the

AMMA bars the State from prosecuting a physician for allegedly

misrepresenting (negligently or otherwise) he had reviewed the last 12

months of a patient’s medical records from other treating physicians when

certifying that “in [his] professional opinion the patient [was] likely to

receive therapeutic or palliative benefit from the medical use of marijuana.”

See Ariz. Rev. Stat. (“A.R.S.”) section 36-2801(18) (2014).1 We hold it does.

FACTS AND PROCEDURAL HISTORY

I. The Arizona Medical Marijuana Act

¶3 A majority of Arizona voters enacted the AMMA by ballot

initiative in 2010. See Proposition 203, 2011 Ariz. Sess. Laws 2724, 2724-50

(codified at A.R.S. §§ 36-2801 to 36-2819 (2014)). The “purpose of [the

AMMA] is to protect patients with debilitating medical conditions, as well

as their physicians and providers, from arrest and prosecution, criminal

and other penalties and property forfeiture if such patients engage in the

medical use of marijuana.” Proposition 203, § 2(G), 2011 Ariz. Sess. Laws

at 2725. In furtherance of this aim, the AMMA provides that a “qualified

1Although the Arizona Legislature amended certain statutes

cited in this decision after the date of Dr. Gear’s alleged offenses, the

revisions are immaterial to the resolution of this appeal. Thus, we cite to

the current version of these statutes.

2

STATE v. GEAR

Opinion of the Court

patient” with a “debilitating medical condition” may obtain a registry

identification card from the Arizona Department of Health Services

(“DHS”) and with it, immunity from State prosecution for marijuana

acquisition, possession, and use within the AMMA’s limits. See A.R.S.

§§ 36-2801(3), (13), -2804.02, -2811(B). To facilitate the medical use of

marijuana, the AMMA also immunizes physicians from prosecution for

certifying patients for access to medical marijuana as discussed in more

detail below. See A.R.S. § 36-2811(C).

¶4 Under the AMMA, a patient applies for a registry card by

submitting, inter alia, a physician’s written certification. See A.R.S. §§ 36-

2801(18), -2804.02(A)(1). By regulation, DHS requires patients to submit the

written certification on a DHS-provided form (“DHS Form”).2 Ariz.

Admin. Code (“A.A.C.”) R9-17-202(F)(5)(2012). The DHS regulations

require the certifying physician to identify the patient’s “debilitating

medical condition” and certify he or she has taken certain steps to confirm

the diagnosis, including reviewing the past 12 months of the patient’s

medical records from other treating physicians and checking the patient’s

profile on the Arizona Board of Pharmacy Controlled Substances

Prescription Monitoring Program database. See id. at (c)-(i). The

regulations also require the certifying physician to attest that in his or her

“professional opinion, the qualifying patient is likely to receive therapeutic

or palliative benefit from the . . . medical use of marijuana to treat or

alleviate the qualifying patient’s debilitating medical condition” and “the

information provided in the written certification is true and correct.” Id. at

(k), (m).

II. Dr. Gear’s Alleged Offenses

¶5 On September 1, 2012, a Navajo County drug task force

confidential informant (“C.I.”) visited Dr. Gear for the purpose of obtaining

a written certification in connection with an undercover investigation of an

alleged illicit medical marijuana cooperative. The C.I. completed a medical

questionnaire and a medical records statement provided by Dr. Gear’s staff.

The C.I. disclosed information about her medical history and physical

condition on the medical questionnaire. On the medical records statement,

the C.I. disclosed she had seen other physicians within the past 12 months,

but did not “have a complete set of medical records” with her. The C.I.

2Section 36-2803(A)(2) authorizes DHS to establish the form

and content of the registration application.

3

STATE v. GEAR

Opinion of the Court

agreed she would either request that her records be sent to Dr. Gear before

her next visit or would bring the records to his office on her next visit.

¶6 Dr. Gear examined the C.I., and based on his examination and

the information the C.I. provided to him, certified the C.I. for medical

marijuana use. Dr. Gear completed the DHS Form, and certified, inter alia,

that he had “reviewed the qualifying patient’s medical records, including

medical records from other treating physicians from the previous 12

months.” A.A.C. R9-17-202(F)(5)(i)(i). Dr. Gear also attested “the

information provided in this written certification is true and correct.” See

id. at (m). Dr. Gear, however, had not yet reviewed the C.I.’s medical

records from other treating physicians for the previous 12 months.

¶7 A grand jury indicted Dr. Gear on one count of forgery, under

A.R.S. § 13-2002 (Supp. 2014), and one count of fraudulent schemes and

artifices, under A.R.S. § 13-2310 (2010), for falsely certifying he had

reviewed the C.I.’s medical records from other treating physicians. The

superior court granted Dr. Gear’s motion to dismiss the indictment, ruling

the AMMA’s physician immunity provision, A.R.S. § 36-2811(C),

immunized Dr. Gear from criminal prosecution on the charges.

DISCUSSION

¶8 The State argues that in dismissing the indictment against Dr.

Gear, the superior court misconstrued the physician immunity provision of

the AMMA. The State’s appeal thus presents an issue of statutory

interpretation which we review de novo. See Ariz. Citizens Clean Elections

Comm’n v. Brain, 234 Ariz. 322, 325, ¶ 11, 322 P.3d 139, 142 (2014).

¶9 We begin our analysis with the language of A.R.S. § 36-

2811(C):

A physician shall not be subject to arrest,

prosecution or penalty in any manner or denied

any right or privilege, including but not limited

to civil penalty or disciplinary action by the

Arizona board of medical examiners or by any

other business, occupational or professional

licensing board or bureau, based solely on

providing written certifications or for otherwise

stating that, in the physician's professional opinion,

a patient is likely to receive therapeutic or palliative

4

STATE v. GEAR

Opinion of the Court

benefit from the medical use of marijuana to treat or

alleviate the patient’s debilitating medical

condition or symptoms associated with the

debilitating medical condition, but nothing in

this chapter prevents a professional licensing

board from sanctioning a physician for failing to

properly evaluate a patient’s medical condition

or otherwise violating the standard of care for

evaluating medical conditions.

(Emphasis added.).

¶10 As an initial matter, the State argues the immunity afforded

by A.R.S. § 36-2811(C) applies only to a physician’s professional opinion

that “a patient is likely to receive therapeutic or palliative benefit from the

medical use of marijuana.” This argument, however, misconstrues the

scope of the immunity granted by A.R.S. § 36-2811(C).

¶11 The relevant statutory language—“providing written

certification or for otherwise stating that, in the physician’s professional

opinion, a patient is likely to receive therapeutic or palliative benefit from

the medical use of marijuana”—is in the disjunctive. A.R.S. § 36-2811(C)

(emphasis added). “Or” is “a disjunctive particle used to express an

alternative or to give a choice of one among two or more things.” Boynton v.

Anderson, 205 Ariz. 45, 49 n.2, ¶ 15, 66 P.3d 88, 92 n.2 (App. 2003) (quoting

State v. Pinto, 179 Ariz. 593, 595, 880 P.2d 1139, 1141 (App. 1994)). As used

in A.R.S. § 36-2811(C), “or” clarifies that a physician is immune from

prosecutions arising from “providing written certifications” and from

prosecutions arising from stating an opinion that “a patient is likely to

receive therapeutic or palliative benefit from the medical use of marijuana.”

The inclusion of immunity for professional opinions made outside of a

written certification provides an alternative circumstance under which the

State cannot prosecute a physician; it does not limit or define the immunity

given for providing a written certification.

¶12 Making a similar argument but focusing on what constitutes

a “written certification,” the State next argues a “written certification” only

encompasses a physician’s written professional opinion, and not the

additional statements DHS requires a physician to make pursuant to

regulation, which as relevant here, requires a physician to state he or she

has reviewed the patient’s “medical records from other treating physicians

from the previous 12 months.” A.A.C. R9-17-202(F)(5)(i)(i). Under the

5

STATE v. GEAR

Opinion of the Court

AMMA, “written certification” is a defined term and encompasses more

than a physician’s professional opinion.

¶13 The AMMA defines “written certification” as:

[A] document dated and signed by a physician,

stating 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 debilitating

medical condition. The physician must:

(a) Specify the qualifying patient’s debilitating

medical condition in the written certification.

(b) Sign and date the written certification only

in the course of a physician-patient relationship

after the physician has completed a full

assessment of the qualifying patient’s medical

history.

A.R.S. § 36-2801(18).

¶14 As defined, a written certification includes more than a

physician’s professional opinion. It requires the physician to enter into a

physician-patient relationship, complete a full assessment of the patient’s

medical history, specify the patient’s debilitating medical condition, and

sign and date the certification “only in the course” of that relationship and

only after completing that assessment. Id. at (a), (b). By regulation, DHS

has essentially described what a physician must do to complete “a full

assessment of the qualifying patient’s medical history,” id. at (b), which, as

relevant here, includes stating he or she has reviewed the patient’s “medical

records from other treating physicians from the previous 12 months.”

A.A.C. R9-17-202(F)(5)(i)(i).3

3The AMMA itself does not expressly require the physician to

review the prior 12 months of the patient’s medical records from other

treating physicians. See A.R.S. §§ 36-2801 to 2819. Neither party has argued

DHS exceeded its rulemaking authority in adopting this requirement.

Accordingly, we have assumed without deciding that DHS has not

exceeded its rulemaking authority in adopting this requirement.

6

STATE v. GEAR

Opinion of the Court

¶15 Dr. Gear’s statement that he had reviewed the C.I.’s medical

records from other treating physicians, then, is part and parcel of his

statutory obligation to complete “a full assessment of the qualifying

patient’s medical history” in providing a written certification. A.R.S. § 36-

2801(18)(b). Accordingly, Dr. Gear did not lose his statutory immunity

merely because he completed the mandated DHS Form, which, pursuant to

regulation, requires a physician to make certain statements not explicitly

provided for by the AMMA, in completing “a full assessment of the

qualifying patient’s medical history.” Id.

¶16 Finally, we come to the heart of the State’s argument on

appeal. The State proposes a construction of A.R.S. § 36-2811(C) that

distinguishes between providing and preparing written certifications, with

the statutory immunity applying only to the former but not the latter.

Congruently, the State portrays the charges against Dr. Gear as arising from

his conduct in preparing the written certification, and therefore, outside the

immunity afforded by A.R.S. § 36-2811(C). We disagree.

¶17 In construing statutes, we apply a word’s “usual and

commonly understood meaning unless the legislature clearly intended a

different meaning.” In re Nelson, 207 Ariz. 318, 322, ¶ 16, 86 P.3d 374, 378

(2004). And, we apply this same principle when we interpret a voter-

approved initiative. Sedona Grand, LLC v. City of Sedona, 229 Ariz. 37, 40, ¶

11, 270 P.3d 864, 867 (App. 2012). “To determine the ordinary meaning of

a word, we may refer to established and widely used dictionaries.” Stout v.

Taylor, 233 Ariz. 275, 278, ¶ 12, 311 P.3d 1088, 1091 (App. 2013).

¶18 The word “providing” has multiple common meanings. See,

e.g., Webster’s Third New International Dictionary 1827 (Phillip Babcock Gove

et al. eds., 1993) (listing four distinct definitions for “provide”); The Oxford

English Dictionary 713 (R.W. Burchfield et al. eds., 2d ed. 1989) (listing nine

distinct definitions for “provide”). Definitions of “provide” relevant here

include: (1) “[t]o furnish or supply (a person, etc.) with something,” (2) “[t]o

equip or fit out (a person, etc.) with what is necessary for a certain purpose,”

id., and (3) “to supply for use.” Webster’s Third New International Dictionary

at 1827.

¶19 An uncompleted DHS Form is not a “written certification.”

See A.R.S. § 36-2801(18) (“‘Written certification’ means a document dated

and signed by a physician . . . .”). Therefore, to furnish or supply a patient

with a written certification, a physician must deliver a completed DHS

7

STATE v. GEAR

Opinion of the Court

Form. Preparation and thus completion of the DHS Form are essential steps

in the process of “providing written certifications.” A.R.S. § 36-2811(C).

Furthermore, the definitions of “provide” quoted above require the

delivery of something useful or appropriate for a particular purpose.

Under the AMMA, patients only have use for completed certifications. See

A.R.S. §§ 36-2801(18), -2804.02(A)(1); A.A.C. R9-17-202. Thus, the scope of

A.R.S. § 36-2811(C)-immunity extends beyond mere delivery of the

certification to the patient; it also encompasses a physician’s actions in

preparing and completing the written certification.

¶20 Even assuming, for the sake of argument, that A.R.S. § 36-

2811(C) is subject to more than one reasonable interpretation, “secondary

principles of statutory interpretation” including “the context of the statute,

the language used, the subject matter, its historical background, its effects

and consequences, and its spirit and purpose” support our decision. See

Ariz. Citizens Clean Elections Comm’n, 234 Ariz. at 325, ¶ 11, 322 P.3d at 142.

¶21 In enacting the AMMA, the voters explicitly barred

prosecution of a physician for providing “written certifications” “or for

otherwise stating” that certain patients may benefit from “the medical use

of marijuana.” A.R.S. § 36-2811(C). This prohibition is essential to the

“purpose of” the AMMA which is “to protect patients with debilitating

medical conditions, as well as their physicians . . . from arrest and

prosecution . . . if such patients engage in the medical use of marijuana.”

Proposition 203, § 2(G), 2011 Ariz. Sess. Laws at 2725. As discussed above,

a physician’s review of a patient’s medical history is an integral part of the

formulation of a physician’s professional opinion and the certification

process. Criminal scrutiny and prosecution of physicians for certifying

patients for medical marijuana use would have a chilling effect on the

voluntary participation of physicians, and, thereby, hinder qualifying

patients’ efforts to obtain competent medical advice regarding medical

marijuana, its medical risks, and its alleged therapeutic and palliative

benefits.

¶22 Our construction of A.R.S. § 36-2811(C) is supported by

related statutes which ensure that physicians cannot, with impunity, falsely

certify patients for medical marijuana. In 2012, the Arizona Legislature

passed A.R.S. §§ 32-3215 (Supp. 2013) and 36-2810(E)(4) (2014). H.B. 2035,

50th Leg., 2d Reg. Sess. (2012) (enacted). Section 36-2810(E)(4) authorizes

DHS to notify the relevant medical board “if the department believes a

physician has committed an act of unprofessional conduct.” Section 32-

3215(A), in turn, provides that “it is an act of unprofessional conduct” for a

8

STATE v. GEAR

Opinion of the Court

physician “to recommend medical marijuana . . . for other than a

debilitating medical condition as defined in § 36-2801.” Section 32-3215 also

requires the State’s medical boards to report to the Arizona Legislature,

Governor, and DHS “[t]he number of notifications received from [DHS]

and from the public of suspected unprofessional conduct that relate to

medical marijuana recommendations,” and “[t]he number of investigations

conducted as a result” of such notifications. A.R.S. § 32-3215(B). Read

together, these statutes create a regulatory mechanism to address allegedly

false or inappropriate medical marijuana certifications.

¶23 Our interpretation is further supported by another provision

of A.R.S. § 36-2811(C), that states the statute does not “prevent[] a

professional licensing board from sanctioning a physician for failing to

properly evaluate a patient’s medical condition or otherwise violating the

standard of care for evaluating medical conditions.” Furthermore, had the

drafters of the AMMA intended to carve out allegedly false statements from

the immunity provided by § 36-2811(C), they could easily have done so.

See, e.g., Mont. Code Ann. § 50-46-331(2) (2011) (“A physician who

purposely and knowingly misrepresents any information required under

50-45-310 [medical marijuana written certification requirements] is guilty

of a misdemeanor . . . .”); Vt. Stat. Ann. tit. 18, § 4474b(b) (2011) (“A health

care professional who has participated in a patient’s application process

[for medical marijuana] shall not be subject to arrest, prosecution, or

disciplinary action . . . , penalized in any manner, or denied any right or

privilege under state law, except for giving false information [to a law

enforcement officer to avoid or help another avoid arrest or prosecution].”).

¶24 In sum, we hold the AMMA’s physician immunity provision,

A.R.S. § 36-2811(C), barred the State’s prosecution of Dr. Gear for allegedly

falsely completing the DHS Form.

CONCLUSION

¶25 For the foregoing reasons, we affirm the superior court’s

dismissal of the indictment against Dr. Gear.

:jt

9