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PHOENIX — Doctors who recommend marijuana to patients can't be charged with crimes even if they did not follow the procedures required by law, the Arizona Court of Appeals ruled Thursday.
The judges acknowledged that Robert Gear, a Phoenix naturopath with offices in several communities, had been charged with recommending the drug to a patient without having access to 12 months of her medical records. That is a requirement under the law.
Gear was indicted on charges of forgery and fraudulent schemes after saying on a form required by the Department of Health Services that he had, in fact, seen those records.
But Judge Patricia Norris, writing for the unanimous appellate court, said what Gear or did not do is legally irrelevant. She said the 2010 voter-approved Arizona Medical Marijuana Act specifically bars criminal charges against any physician who certifies that a patient is likely to benefit from the drug.
Norris said a contrary ruling would be bad public policy.
"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,'' the judge wrote.
Thursday's decision upset Navajo County Attorney Brad Carlyon
"I'm just disappointed there are no consequences for doctors that don't follow the rules on how to prescribe a medical marijuana card,'' he said.
But Kimberly Kent, the attorney who represents Gear, said the law is clear. She said a doctor who determines marijuana is appropriate for a patient is immune from criminal prosecution.
Kent said it's a separate question of whether Gear might face some discipline, either by the health department or the board that regulates naturopaths.
Arizona law allows those with certain medical conditions to obtain up to 2 1/2 ounces of marijuana every two weeks. But they must first get a written recommendation from a doctor.
Court records say that a confidential informant working for the county's drug task force went to Gear to get such a recommendation. She completed a medical questionnaire and medical records statement provided by Gear's staff and disclosed information about her medical history and physical condition.
She also said she had seen other doctors in the past 12 months but did not "have a complete set of medical records'' with her. But she agreed she would either request that her records be sent to Gear or would bring them to her on her next visit.
Based on his examination of the woman, Gear certified the woman for medical marijuana use. He also completed a form which said he had "reviewed the qualifying patient's medical records, including medical records from other treating physicians from the previous 12 months.''
Norris said there is no legal basis for the charge.
She said the 2010 law provides immunity for any case in which a doctor certifies that "a patient is likely to receive therapeutic or palliative benefit from the medical use of marijuana.'' And Norris said that is exactly what Gear did.
The question of whether he was not truthful on the form does not strip Gear of that immunity, she said, particularly as that requirement to review 12 months' worth of medical records is not required under the law but instead a regulation by the health department.
"Dr. Gear did not lose his statutory immunity merely because he completed the mandated DHS form,'' Norris wrote.
Beyond that, she said the immunity extends beyond delivering the certification sought by the patient.
"It also encompasses a physician's actions in preparing and completing the written certification,'' Norris said.
State Health Director Will Humble, whose agency enacted the rules about the medical records and designed the form, declined to comment on Thursday's ruling.
Follow Howard Fischer on Twitter at @azcapmedia.
Two dozen doctors in Arizona are responsible for making medical marijuana available to more than 34,000 patients according to a new report, with several writing recommendations at the rate of one an hour for every business hour of the day.
PHOENIX (AP) — Three of Arizona's top prosecutors are calling on political and civic leaders to oppose the legalization of marijuana for recreational use.
Maricopa County Attorney Bill Montgomery, Pima County Attorney Barbara LaWall and Yavapai County Attorney Sheila Polk are asking state leaders to stand on the side of decreasing drug use among youth.
The Washington, D.C.-based Marijuana Policy Project filed paperwork in Arizona to begin fundraising for a marijuana legalization ballot measure for 2016.
A University of Michigan survey shows states with medical marijuana make up the top 10 states for illicit use of marijuana by minors between ages 12 and 17.
Prosecutors say an Arizona Youth Survey shows the number of students who use illicit marijuana by getting it from someone with a medical marijuana card is on the rise.
PHOENIX -- A medical-marijuana card is not a get-out-of-jail-free card for motorists found with active components of the drug in their system, no matter how little, the state Court of Appeals ruled Tuesday.
The judges rejected arguments by the attorney for Travis Darrah that the positive drug test, by itself, cannot be used to convict him of driving under the influence of drugs. The judges said prosecutors need not prove actual impairment.
Tuesday's ruling is unlikely to be the last word. Attorney John Tatz said he is weighing seeking Supreme Court review, saying the decision is in direct contradiction to the 2010 voter-approved Arizona Medical Marijuana Act. That's also the assessment of Chris Lindsey, a legislative analyst with the Marijuana Policy Project which crafted the law.
Darrah, who has a state-issued card allowing him to obtain and use marijuana, was arrested by Mesa police in 2011. He was charged with two separate counts of driving under the influence of drugs.
One makes it illegal to drive while impaired. The other says a person cannot operate a motor vehicle while there is any illegal drug or its metabolite in his or her body. That was based on a blood test that showed evidence of an active component of marijuana
Tatz asked the second count to be dismissed.
He acknowledged that the 2010 law does not make it legal for a medical marijuana cardholder to operate a motor vehicle while under the influence of the drug. But Tatz pointed out the law also says medical marijuana users cannot be considered under the influence solely because of the presence of metabolites or components of the marijuana "that appear in insufficient concentration to cause impairment.'' And he said there was no evidence presented that Darrah was not impaired.
The judge refused to drop the charge and refused to let jurors hear that
Darrah is a medical marijuana users. Jurors then found Darrah innocent of the impairment charge but, based solely on the blood test, guilty of the second charge.
Appellate Judge Michael Brown, writing for the court, said he does not read the law -- and the exemption -- as broadly as Tatz.
"If Arizona voters had intended to completely bar the state form prosecuting authorized marijuana users under (this section of the law), they could have easily done so by using specific language to that effect,'' Brown wrote.
Lindsey said all that ignores the intent of the law: allow patients to use the drug and not be kept from driving simply because there was something left in their bodies that shows up in a blood test.
The key, he said, is impairment -- or the lack thereof.
"You could have a small amount of active metabolite in the system and not be impaired,'' he said, much as someone using a prescription painkiller would not be breaking the law if the concentration was too low to cause impairment. And Lindsey said the 2010 law was crafted to include the impairment requirement because of how long marijuana remains in the system.
Tatz said there is precedent for that argument.
He said the parallel charge for alcohol to the one his client was convicted is operating a motor vehicle with a blood-alcohol content of 0.08.
If the blood test returns a number below that, that charge is dismissed. But the motorist still can be charged with driving while impaired if there is other evidence.
In this case, Tatz said, there is no presumptive number in Arizona law for how much marijuana someone can have in the blood. So that, he said, leaves prosecutors only the option of charging Darrah with driving while impaired -- a charge for which his client was found innocent by a jury.
Brown also said this case is different than one where the Arizona Supreme Court earlier this year voided driving while intoxicated charges against another medical marijuana user.
In that case, though, the justices pointed out that what was found in that driver's blood was an inactive metabolite of the drug which can remain long after the effects had worn off.
A medical marijuana card is not a get-out-of-jail-free card for motorists found with active components of the drug in their system, no matter how little, the state Court of Appeals ruled Tuesday.
Gov. Jan Brewer says terminally ill patients should have the right to use drugs which have not yet been approved — and may never be approved — by federal agencies.
It may look like a cigarette, and it certainly delivers a dose of nicotine like a cigarette.
State judges cannot bar those placed on probation from using medical marijuana if they are otherwise eligible, the state Court of Appeals ruled Friday. And that even includes those who were convicted for drug offenses.
A Pima County Superior Court judge may have paved the way for the state's more than 52,000 medical marijuana users to get into business of selling the drug, at least to each other.
Cops take your pot?
Legal marijuana users would help fund programs designed to prevent others from trying the drug under the terms of legislation given preliminary Senate approval Wednesday.
The parents of a brain-damaged Mesa boy have a right to ask court permission to be able to buy and administer marijuana extracts for their child, a Maricopa County Superior Court judge ruled late Friday.
Arizona's more than 43,000 medical marijuana patients smoked, ate or otherwise consumed close to three tons of the weed last year.
PHOENIX — Medical marijuana users have no constitutional right to grow their own drug, a trial judge has ruled.
PHOENIX – Just 25 doctors are responsible for allowing more than 25,000 Arizonans to legally obtain marijuana, according to a new report Friday.
Saying their 5-year-old child’s life may depend on it, a Mesa couple has sued to demand legal access to extracts of marijuana for him.
PHOENIX — Saying their 5-year-old child's life may depend on it, a Phoenix couple has sued to demand legal access to extracts of marijuana for him.
I’m writing about “Group pushing for broader medical marijuana laws” (Tribune, Sept. 15).
PHOENIX — A constitutional right to control your own health care is not a right to grow your own medical marijuana, according to an attorney for the state's top health official.
“To the midwest venter implying they were safer 50 years ago. I’ll bet you lived in a ‘sundown town’, which would have intimidated anyone of color to keep moving on to the next town. Safe for what color of resident? Pretty obvious, ‘Sundown.’”
PHOENIX — You may have a state-issued card allowing you to buy and use marijuana for medical purposes. But the state's top health official warned Friday that medical marijuana soda pop or hard candy you bought may still land you — and the dispensary owner who sold it to you — in jail.
By next week, a Mesa family hopes to be giving their 5-year-old son a drug treatment that’s controversial even for adults.
The Welton family plan to use medical marijuana to treat their son, Zander, who suffers from seizures caused by cortical dysplasia, a genetic brain defect.
PHOENIX — Two Arizona men are arguing that a 2010 voter-approved measure designed to attack the federal Affordable Care Act gives them a constitutional right to grow their own medical marijuana.