State v. Gear (Summary)

PROSECUTION IMMUNITY

State v. Gear, No. 1 CA-CR 13-0852 (Ariz. Ct. App. Nov. 20, 2014)

The Court of Appeals of Arizona affirmed a lower court’s dismissal of an indictment against a physician. The physician was charged with forgery and fraudulent schemes and artifices after falsely stating that he had reviewed a woman’s medical records during the process of certifying her for access to medical marijuana. In fact, the woman was a confidential informant sent by the Navajo County drug task force, who had visited the physician in connection with an undercover investigation of an illicit medical marijuana cooperative. Although this confidential informant did not bring a complete set of medical records with her, the physician checked a box on a form from the Arizona Department of Health Services (“DHS Form”), certifying that he had “reviewed the qualifying patient’s medical records, including medical records from other treating physicians from the previous 12 months.”

Under the Arizona Medical Marijuana Act (“AMMA”), a physician is immune from prosecution for providing written certifications that a patient will receive a therapeutic or palliative benefit from the medical use of marijuana. The Court of Appeals held that the DHS Form was a written certification for purposes of AMMA, explaining that criminal scrutiny and prosecution of physicians for certifying patients for medical marijuana use would have a chilling effect on physicians and would hinder patients’ ability to obtain advice on medical marijuana. It ruled that AMMA barred the state’s prosecution of the physician and affirmed the superior court’s dismissal of the indictment.