dobson/anderson v. Hon. mcclennen/mesa Prosecutor

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

KRISTINA R. DOBSON,

Petitioner,

v.

THE HONORABLE CRANE MCCLENNEN, JUDGE OF THE SUPERIOR COURT OF THE

STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,

Respondent Judge,

CITY OF MESA PROSECUTOR’S OFFICE,

Real Party in Interest.

MARVELLE D. ANDERSON,

Petitioner,

v.

THE HONORABLE CRANE MCCLENNEN, JUDGE OF THE SUPERIOR COURT OF THE

STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,

Respondent Judge,

CITY OF MESA PROSECUTOR’S OFFICE,

Real Party in Interest.

No. CV-14-0313-PR

Filed November 20, 2015

Appeal from the Superior Court in Maricopa County

The Honorable Crane McClennen, Judge

No. LC2014-000196 and LC2014-000266

AFFIRMED

Opinion of the Court of Appeals, Division One

236 Ariz. 203, 337 P.3d 568 (App. 2014)

VACATED

DOBSON V. MCCLENNEN (MESA PROSECUTOR)

Opinion of the Court

COUNSEL:

John P. Tatz (argued), John P. Tatz Attorney at Law, P.C., Glendale,

Attorney for Kristina R. Dobson and Marvelle D. Anderson

W. Craig Jones (argued), Chief Assistant City Prosecutor, Mesa City

Prosecutor’s Office, Mesa, Attorneys for City of Mesa Prosecutor’s Office

David J. Euchner (argued), Tucson, Attorney for Amicus Curiae Arizona

Attorneys for Criminal Justice

Thomas W. Dean, Phoenix, Attorney for Amicus Curiae National

Organization for the Reform of Marijuana Laws

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE

CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER, and

BERCH (RETIRED) joined.

CHIEF JUSTICE BALES, opinion of the Court:

¶1 The Arizona Medical Marijuana Act (“AMMA”), passed by

voters in 2010 and codified as A.R.S. §§ 36-2801-2819, allows a person who

has been diagnosed by a physician as having a debilitating medical

condition to apply for a card identifying the holder as a registered

qualifying patient. Such patients may possess and use limited amounts of

marijuana for medical reasons. The AMMA broadly immunizes them from

prosecution for using medical marijuana consistent with the Act.

¶2 Arizona’s laws generally make it a crime for a person to drive

with any amount of certain drugs, including marijuana or its impairing

metabolite, in the person’s body. A.R.S. § 28-1381(A)(3); State ex rel.

Montgomery v. Harris (Shilgevorkyan), 234 Ariz. 343, 347 ¶ 24, 322 P.3d 160,

164 (2014). We today hold that the AMMA does not immunize a medical

marijuana cardholder from prosecution under § 28-1381(A)(3), but instead

affords an affirmative defense if the cardholder shows that the marijuana

or its metabolite was in a concentration insufficient to cause impairment.

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DOBSON V. MCCLENNEN (MESA PROSECUTOR)

Opinion of the Court

I.

¶3 Kristina Dobson and Marvelle Anderson (“Petitioners”) were

each charged with two counts of driving under the influence (“DUI”).

Count one alleged a violation of A.R.S. § 28-1381(A)(1), which prohibits a

person from driving a vehicle in Arizona “[w]hile under the influence of …

any drug … if the person is impaired to the slightest degree.” Count two

alleged a violation of § 28-1381(A)(3), which prohibits driving a vehicle

“[w]hile there is any drug defined in § 13-3401 or its metabolite in the

person’s body.” Cannabis (marijuana) is a drug defined in A.R.S. § 13-

3401(4). Blood tests showed that each Petitioner had marijuana and its

impairing metabolite in his or her body.

¶4 The municipal court denied Dobson’s motion to present

evidence at trial that she held an Oregon-issued medical marijuana card

and granted the State’s motion in limine to preclude evidence that

Anderson held an Arizona-issued medical marijuana card. Neither

Petitioner sought to introduce any evidence other than their respective

medical marijuana cards. The State dismissed the (A)(1) charges and

Petitioners, after submitting the issue of guilt to the court based on a

stipulated record, were each convicted of the (A)(3) charge.

¶5 Petitioners timely appealed to the Maricopa County Superior

Court, which affirmed their convictions. They then sought special action

review in the court of appeals, which accepted jurisdiction but denied relief.

Dobson v. McClennen, 236 Ariz. 203, 205 ¶ 1, 337 P.3d 568, 570 (App. 2014).

The court of appeals held that “neither A.R.S. § 36-2811(B) nor § 36-2802(D)

provides immunity for defendants facing charges for driving with an

impermissible drug or impairing metabolite in their bodies under A.R.S.

§ 28-1381(A)(3).” 263 Ariz. at 209 ¶ 20, 337 P.3d at 574.

¶6 We granted review because whether the AMMA immunizes

a medical marijuana cardholder from DUI prosecution under § 28-

1381(A)(3) presents a recurring issue of statewide importance. We have

jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and

A.R.S. § 12-120.24.

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DOBSON V. MCCLENNEN (MESA PROSECUTOR)

Opinion of the Court

II.

¶7 We review questions of statutory interpretation de novo.

State v. Hansen, 215 Ariz. 287, 289 ¶ 6, 160 P.3d 166, 168 (2007). A reviewing

court’s “primary objective in construing statutes adopted by initiative is to

give effect to the intent of the electorate.” State v. Gomez, 212 Ariz. 55, 57

¶ 11, 127 P.3d 873, 875 (2006). “When two statutes conflict, we adopt a

construction that reconciles them whenever possible, giving force and

meaning to each.” State v. Jones, 235 Ariz. 501, 502 ¶ 6, 332 P.3d 191, 192

(2014).

A.

¶8 The AMMA broadly immunizes registered qualifying

patients for their medical use of marijuana, providing:

A registered qualifying patient . . . is not subject to arrest,

prosecution or penalty in any manner, or denial of any right

or privilege, including any civil penalty or disciplinary action

by a court or occupational or professional licensing board or

bureau: (1) For the registered qualifying patient’s medical use

of marijuana pursuant to this chapter, if the registered

qualifying patient does not possess more than the allowable

amount of marijuana.

A.R.S. § 36-2811(B)(1).

¶9 This grant of immunity is not absolute. For instance, the

AMMA does not prohibit prosecution for “[o]perating, navigating or being

in actual physical control of any motor vehicle, aircraft or motorboat while

under the influence of marijuana.” A.R.S. § 36-2802(D). However, “a

registered qualifying patient shall not be considered to be under the

influence of marijuana solely because of the presence of metabolites or

components of marijuana that appear in insufficient concentration to cause

impairment.” Id.

¶10 Arizona’s DUI laws identify separate offenses for driving

while a person is under the influence of marijuana and “impaired to the

slightest degree,” A.R.S. § 28-1381(A)(1), and driving while there is

marijuana or its metabolite “in the person’s body.” § 28-1381(A)(3). An

(A)(3) violation, unlike an (A)(1) violation, does not require the state to

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DOBSON V. MCCLENNEN (MESA PROSECUTOR)

Opinion of the Court

prove that the defendant was in fact impaired while driving or in control of

a vehicle. Harris, 234 Ariz. at 347 ¶ 24, 322 P.3d at 164. Instead, marijuana

users “violate (A)(3) if they are discovered with any amount of THC or an

impairing metabolite in their body.” Id.

¶11 The (A)(1) and (A)(3) offenses also differ with respect to

possible defenses. When the state charges a person with driving while

impaired by drugs in violation of (A)(1), “[i]t is not a defense . . . that the

person is or has been entitled to use drugs under the laws of this state.”

§ 28-1381(B). In contrast, a person cannot be convicted under (A)(3) for

using a drug as prescribed by a licensed medical practitioner. A.R.S. § 28-

1381(D). Subsection (D) thus provides an affirmative defense to an (A)(3)

charge.

¶12 In Harris, we held that “[d]rivers cannot be convicted of the

(A)(3) offense based merely on the presence of a non-impairing metabolite

that may reflect the prior usage of marijuana.” 234 Ariz. at 347 ¶ 24, 322

P.3d at 164. Although we observed that “a driver who tests positive for any

amount of an impairing drug is legally and irrefutably presumed to be

under the influence,” id. at 347 ¶ 22, 322 P.3d at 164, in Harris we did not

consider the scope of the subsection (D) affirmative defense. Nor did that

case involve a driver who was a qualified registered patient.

¶13 Here, we must resolve how the AMMA affects (A)(3)

prosecutions. The State argues that the AMMA, which provides that a

registered card holder cannot be considered to be under the influence of

marijuana if it is present in an “insufficient concentration to cause

impairment,” § 36-2802(D), does not affect (A)(3) prosecutions at all

because the State is not required to prove a defendant’s impairment to

establish an (A)(3) violation. Dobson and Anderson counter that the

AMMA immunizes them from an (A)(3) prosecution because they cannot

be considered to be under the influence based solely on the mere presence

of marijuana or its metabolite in their bodies. They also contend that the

affirmative defense afforded by § 28-1381(D) applies to them.

¶14 Neither position urged by the parties represents the best

reading of the statutory provisions. The State’s view effectively renders

superfluous the “shall not be considered to be under the influence” clause

in A.R.S. § 36-2802(D). This language would be unnecessary if it only

prohibited prosecution under statutes, such as § 28-1381(A)(1), that require

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DOBSON V. MCCLENNEN (MESA PROSECUTOR)

Opinion of the Court

the state to prove that the defendant is in fact impaired as a result of the

presence of marijuana or its metabolite. Section 36-2802(D) is more

plausibly interpreted as applying to statutes like § 28-1381(A)(3), which, as

we noted in Harris, presume that a defendant is impaired based on the mere

presence of any amount of marijuana or its potentially impairing

metabolites in a person’s body. 234 Ariz. at 347 ¶ 22, 322 P.3d at 164.

¶15 Petitioners, however, are also not convincing in arguing that

§ 36-2802(D) immunizes registered qualifying patients from any

prosecution under § 28-1381(A)(3). Section 36-2802(D) does not say that

registered qualifying patients cannot be prosecuted for (A)(3) violations.

Instead, it provides that such patients, who use marijuana “as authorized”

by the AMMA, id. § 36-2802(E), cannot “be considered to be under the

influence of marijuana solely because of the presence of metabolites or

components of marijuana that appear in insufficient concentration to cause

impairment.” Id. § 36-2802(D) (emphasis added).

¶16 Violations of § 28-1381(A)(3) include, but are not limited to,

situations in which drivers have a non-impairing amount of certain drugs

in their bodies. This reflects that the legislature, in seeking to combat the

serious problem of impaired driving, recognized that for certain drugs it

may be difficult to identify concentrations that definitively establish

whether a defendant is impaired. Harris, 234 Ariz. at 347 ¶ 22, 322 P.3d at

164; cf. A.R.S. § 28-1381(A)(2) (proscribing driving with an alcohol

concentration of .08 or more irrespective of proof of actual impairment).

Thus, the (A)(3) offense does not require the state to prove that the

defendant is in fact impaired “to the slightest degree,” § 28-1381(A)(1), but

instead requires the state to prove that the defendant has been driving or in

control of a vehicle while any amount of the proscribed drugs or their

impairing metabolites are present “in the person’s body.” Id. 28-1381(A)(3);

Harris, 234 Ariz. at 347 ¶ 24, 322 P.3d at 164.

¶17 Section (A)(3) thus casts a net that embraces drivers who have

proscribed drugs or their impairing metabolites in their bodies but who

may or may not be impaired. By its terms, § 36-2802(D) does not shield

registered qualifying patients from prosecution under (A)(3), but instead

says they cannot be considered to be “under the influence” based solely on

concentrations of marijuana or its metabolites that are insufficient to cause

impairment. When read together, the statutory provisions suggest that the

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DOBSON V. MCCLENNEN (MESA PROSECUTOR)

Opinion of the Court

AMMA gives qualifying patients a limited defense rather than a general

immunity in (A)(3) prosecutions.

¶18 We reject, however, Petitioners’ argument that qualifying

patients can rely on the defense afforded by § 28-1381(D) for the use of

prescribed drugs. Medical marijuana used pursuant to “written

certifications” under the AMMA is not “prescribed,” see A.R.S. §§ 36-

2801(18), -2804.02(A)(1); and the § 28-1381(D) defense applies to drugs

prescribed by a different class of licensed “medical providers” than those

who may issue medical marijuana certifications. Compare A.R.S. § 28-

1381(D) (defining “medical providers” as including licensed podiatrists,

dentists, medical doctors, and osteopathic physicians) with § 36-2801(12)

(defining “physician” as including licensed medical doctors and

osteopathic, naturopathic, and homeopathic physicians).

¶19 Section 36-2802(D), rather than § 28-1381(D), defines the

affirmative defense available to a registered qualifying patient to an (A)(3)

charge. If their use of marijuana is authorized by § 36-2802(D), such

patients cannot be deemed to be under the influence – and thus cannot be

convicted under (A)(3) - based solely on concentrations of marijuana or its

metabolite insufficient to cause impairment. Possession of a registry card

creates a presumption that a qualifying patient is engaged in the use of

marijuana pursuant to the AMMA, so long as the patient does not possess

more than the permitted quantity of marijuana. A.R.S. § 36-2811(A)(1).

That presumption is subject to rebuttal as provided under § 36-2811(2).

¶20 A qualifying patient may be convicted of an (A)(3) violation

if the state proves beyond a reasonable doubt that the patient, while driving

or in control of a vehicle, had marijuana or its impairing metabolite in the

patient’s body. The patient may establish an affirmative defense to such a

charge by showing that his or her use was authorized by the AMMA -

which is subject to the rebuttable presumption under § 36-2811(2) - and that

the marijuana or its metabolite was in a concentration insufficient to cause

impairment. The patient bears the burden of proof on the latter point by a

preponderance of the evidence, as with other affirmative defenses. See

A.R.S. § 13-205 (“[A] defendant shall prove any affirmative defense raised

by a preponderance of the evidence.”).

¶21 Petitioners contend that it is inappropriate to assign to

qualifying patients the burden of showing that they did not have marijuana

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DOBSON V. MCCLENNEN (MESA PROSECUTOR)

Opinion of the Court

concentrations sufficient to cause impairment because there is no

commonly accepted threshold for identifying such concentrations. Cf.

Harris, 234 Ariz. at 347 ¶ 22, 322 P.3d at 164 (noting that “there is no

generally applicable concentration that can be identified as an indicator of

impairment for illegal drugs”). This contention, however, argues in favor

of assigning the burden to patients to prove, by a preponderance, that the

marijuana concentration in their bodies while they were driving was not

sufficient to cause impairment. The risk of uncertainty in this regard should

fall on the patients, who generally know or should know if they are

impaired and can control when they drive, rather than on the members of

the public whom they encounter on our streets. Cf. Harris, 234 Ariz. at 346

¶ 20, 322 P.3d at 163 (noting state’s compelling interest in protecting public

from drivers who may be impaired by consumption of controlled

substances).

B.

¶22 Petitioners made no effort to show that the marijuana in their

bodies was in an insufficient concentration to cause impairment. Instead,

they argued that the AMMA categorically barred the (A)(3) charge, and

they offered only their respective registry identification cards into evidence.

Although evidence of possession of a registry card would generally be

admissible in an (A)(3) prosecution to invoke the presumption that the

patient was using marijuana pursuant to the AMMA, it does not suffice to

establish the § 36-2802(D) affirmative defense. Any error by the trial court

in excluding evidence of the registry cards was harmless in light of the

stipulations by Petitioners that they had marijuana in their bodies while

driving (blood tests revealed both THC and its impairing metabolite

hydroxy-THC) and their failure to offer any evidence that the

concentrations were insufficient to cause impairment.

III.

¶23 Rather than shielding registered qualifying patients from any

prosecution under A.R.S. § 28-1381(A)(3), the AMMA affords an

affirmative defense for those patients who can show, by a preponderance

of the evidence, that the concentration of marijuana or its impairing

metabolite in their bodies was insufficient to cause impairment. We vacate

the opinion of the court of appeals and affirm the Petitioners’ convictions.

8