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.

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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.

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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

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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

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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.

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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

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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

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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

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