concurring in part and dissenting
in part.
The Oregon Medical Marijuana Act (OMMA) creates an affirmative defense to certain marijuana-related crimes for any person who:
“(a) Has been diagnosed with a debilitating medical condition within 12 months prior to arrest and been advised by the person’s attending physician that the medical use of marijuana may mitigate the symptoms or effects of that debilitating medical condition;
“(b) Is engaged in the medical use of marijuana; and
“(c) Possesses or produces marijuana only in amounts permitted under ORS 475.320.”
ORS 475.319(1). The question presented in this case is whether a person qualifies for the affirmative defense if he “[h]as been diagnosed with a debilitating medical condition within 12 months prior to arrest” but was last advised by his or her “attending physician that the medical use of marijuana may mitigate the symptoms or effects of that debilitating medical condition” more than a year before the arrest. The majority holds that such a person does not qualify for the affirmative defense; in its view, the affirmative defense is available only if the person received the attending *435physician’s advice about the possible benefits of medical marijuana use within the 12 months immediately preceding the person’s arrest. I disagree and, therefore, respectfully dissent from the majority opinion to the extent that it affirms defendant’s conviction for unlawful possession of marijuana.1
My disagreement with the majority’s statutory analysis begins with my reading of the statutory text. As noted, the OMMA affirmative defense is available to a person who meets certain requirements, including that the person:
“Has been diagnosed with a debilitating medical condition within 12 months prior to arrest and been advised by the person’s attending physician that the medical use of marijuana may mitigate the symptoms or effects of that debilitating medical condition[.]”
ORS 475.319(1)(a). Thus, the affirmative defense may be available to a person who can establish that he or she has received two pieces of medical information: (1) diagnosis with a debilitating medical condition, and (2) advice from the person’s attending physician that medical marijuana use might mitigate the symptoms or effects of that condition. For the sake of brevity, I refer to that medical information as the “diagnosis” and the “medical marijuana advice” in the remainder of this dissent.
I agree with the majority that a person can be entitled to the OMMA affirmative defense only if the person has received a diagnosis of a debilitating medical condition within the 12 months immediately preceding the person’s arrest. See State v. Luster, 271 Or App 425, 429-30, 350 P3d 575 (2015) (so explaining). That is what the first 14 words of ORS 475.319(1)(a) say. I also agree with the majority that the two references to “debilitating medical condition” in subsection (a) of the statute refer to the same medical condition; the word “that” before the second occurrence of “debilitating medical condition” has that effect. It follows that the medical condition with which the person has been diagnosed (within *436the 12 months preceding arrest) must be the same as the medical condition about which the person has received medical marijuana advice. But the majority finds significance in that congruence that I cannot. According to the majority, because the two references to “debilitating medical condition” are to the same condition, and because a person can be entitled to the affirmative defense only if he or she has received a diagnosis of that condition within the 12 months preceding arrest, it follows that the person must also have received medical marijuana advice in that same period of time. For the following reasons, I disagree.
First, the placement of the phrase “within 12 months prior to arrest” in ORS 475.319(1)(a) is significant. Again, that subsection provides that the affirmative defense may be available to a person who, among other things:
“Has been diagnosed with a debilitating medical condition within 12 months prior to arrest and been advised by the person’s attending physician that the medical use of marijuana may mitigate the symptoms or effects of that debilitating medical condition [.]”
ORS 475.319(1)(a) (emphasis added). The emphasized phrase follows, and naturally attaches to, what precedes it: the requirement that the person have been diagnosed with a debilitating medical condition. I see no reason to read the phrase as also modifying the “medical marijuana advice” requirement that comes later in the sentence.
Second, I do not find it illogical, as the majority appears to assume, to conclude that a person may have been diagnosed with a particular debilitating medical condition within the 12 months preceding the person’s arrest, yet have received medical marijuana advice about that same condition only earlier, and not within the pertinent year. A hypothetical example may serve to illustrate my point. Suppose a person’s attending physician diagnosed her in 2010 with a debilitating medical condition — say, a degenerative spine condition that causes severe pain. See ORS 475.302(3)(b) (“debilitating medical condition” includes a medical condition that produces “[s]evere pain”). The person’s attending physician advised her, at the same time, that medical marijuana use could help ease the symptoms of *437that spine condition. Although the person would have qualified for a medical marijuana card, she did not get one. In 2012, the person’s diagnosis was confirmed — she still suffered the same painful degenerative spine condition. Later that year, she was arrested for possessing a small amount of marijuana. In my view, that hypothetical person might be able to establish an affirmative defense to the marijuana-possession charge because she (1) was “diagnosed with a debilitating medical condition within 12 months prior to arrest” and (2) had “been advised by the person’s attending physician that the medical use of marijuana may mitigate the symptoms or effects of that debilitating medical condition.” Thus, it does not seem illogical to give ORS 475.319(1)(a) its most natural reading, so that the timing requirement applies only to the diagnosis and not also to the medical marijuana advice.
Third, my interpretation of ORS 475.319(1)(a) is informed by the statute’s context, in particular, how it and related OMMA provisions have developed over time. See State v. Ziska/Garza, 355 Or 799, 806, 334 P3d 964 (2014) (“Analysis of the context of a statute may include prior versions of the statute, including any wording changes in a statute over time.” (Citations omitted.)); Stevens v. Czerniak, 336 Or 392, 401, 84 P3d 140 (2004) (a statute’s context “includes other provisions of the same statute, the session laws, and related statutes”). I begin by considering another major provision of the OMMA: ORS 475.309, which sets out requirements for obtaining the “registry identification card” that “except [s]” the cardholder from state laws criminalizing the possession, delivery, and production of marijuana under certain circumstances. As originally enacted by the voters, the OMMA provided that a person could obtain a registry identification card if the person paid a required fee and provided:
“(a) Valid, written documentation from the person’s attending physician stating that the person has been diagnosed with a debilitating medical condition and that the medical use of marijuana may mitigate the symptoms or effects of the person’s debilitating medical condition;
“(b) The name, address and date of birth of the person;
*438“(c) The name, address and telephone number of the . person’s attending physician; and
“(d) The name and address of the person’s designated primary caregiver, if the person has designated a primary caregiver at the time of application.”
ORS 475.309(2) (1999). Thus, initial issuance of a card required an attending physician’s statement regarding both diagnosis and medical marijuana advice.2
The original OMMA, like the present version, also required cardholders to provide updated information to the state each year. Thus, in 1999, a cardholder was required to annually submit:
“(A) Updated written documentation of the person’s debilitating medical condition; and
“(B) The name of the person’s designated primary caregiver if a primary caregiver has been designated for the upcoming year.”
ORS 475.309(7)(a)(ii) (1999).
Notably, that statutory provision required a cardholder to annually provide updated documentation only of his or her diagnosis; the cardholder was not also required to provide updated documentation of any medical marijuana advice. A similar limitation was found in subsection (8) of the statute, which required a cardholder whose attending physician diagnosed the cardholder “as no longer having a debilitating medical condition” to return the registry identification card to the state. ORS 475.309(8) (1999). No similar requirement was imposed on any cardholder who continued to suffer a debilitating medical condition, but whose attending physician no longer believed that medical marijuana use might mitigate the symptoms or effects of that condition.
*439I next consider the wording of the OMMA affirmative defense, as initially enacted by the voters. That provision originally stated:
“(1) Except as provided [in provisions not pertinent here], it is an affirmative defense to a criminal charge of possession or production of marijuana * * * that the person charged with the offense is a person who:
“(a) Has been diagnosed with a debilitating medical condition and been advised by his or her attending physician the medical use of marijuana may mitigate the symptoms or effects of that debilitating medical condition;
“(b) Is engaged in the medical use of marijuana; and
“(c) Possesses or produces marijuana only in [certain amounts].”
Or Laws 1999, ch 4, § 6.
By requiring proof of both a diagnosis and related medical marijuana advice, that provision essentially created an affirmative defense to marijuana charges for those individuals who would have qualified for registry identification cards under the OMMA but who had, for whatever reason, not obtained them. Indeed, some people could have taken advantage of the affirmative defense even though they would not have been able to get (or, more precisely, retain) registry identification cards. That is because the affirmative-defense provision did not include any timing requirements; consequently, a person could establish the affirmative defense no matter how long ago the person had been diagnosed with a debilitating medical condition and received advice that medical marijuana use might help. But cardholders, as explained above, were required to provide updated diagnosis information annually.
That aspect of the OMMA affirmative defense did not escape the 1999 legislature, which quickly amended the affirmative-defense provision to include a timing requirement. As amended in 1999, the affirmative defense was available only to a person who:
“(a) Has been diagnosed with a debilitating medical condition within 12 months prior to arrest and been advised *440by his or her attending physician the medical use of marijuana may mitigate the symptoms or effects of that debilitating medical condition [.]”
ORS 475.319(1) (1999) (emphasis added). So amended, the affirmative defense became available only to people who could have obtained and maintained a registry identification card over time, because they had been diagnosed with a debilitating medical condition and received medical marijuana advice about that condition at some point in the past, and had received a confirmed diagnosis of that debilitating medical condition within the 12 months preceding arrest.
In that historic context, it makes sense that the legislature intended the timing requirement — the “within 12 months prior to arrest” clause — to apply only to the diagnosis and not to the medical marijuana advice. In 1999, registered cardholders were required to provide the state with updated confirmation of their diagnoses each year, but were not required to annually confirm that they continued to receive medical marijuana advice. ORS 475.309(7) (1999). The 1999 legislative amendment of ORS 475.319(1)(a) simply brought the timing requirements for the affirmative defense in line with the annual reporting requirements that cardholders then had to meet.3
In 2007, the legislature amended ORS 475.309(7), with the result that a registered cardholder is now required to annually confirm both the diagnosis of a debilitating medical condition and the related medical marijuana advice:
“(7) (a) A person who possesses a registry identification card shall:
"*****
“(C) Annually submit to the [Oregon Health Authority]:
“(i) Updated written documentation from the cardholder’s attending physician of the person’s debilitating medical condition and that the medical use of marijuana *441may mitigate the symptoms or effects of the person’s debilitating medical condition[.]”
ORS 475.309(7) (emphasis added).4 But the legislature did not similarly amend ORS 475.319(1)(a), to make the timing requirement relate to both the diagnosis and the medical marijuana advice. The timing requirement in the affirmative-defense provision remains the same now as it was in 1999.
In sum, I interpret ORS 475.319(1)(a) to mean that an affirmative defense may be available to a person who (1) “has been diagnosed with a debilitating medical condition within 12 months prior to arrest” and (2) has — at some point that could be more than 12 months before arrest— “been advised by the person’s attending physician that the medical use of marijuana may mitigate the symptoms or effects of that debilitating medical condition.” The trial court’s ruling that precluded defendant from raising the affirmative defense was based on a contrary interpretation of the statute that makes the affirmative defense available only to a person who has, within the 12 months preceding arrest, received both a diagnosis and related medical marijuana advice. I believe that ruling was erroneous.
Because I disagree with the majority’s (and trial court’s) determination that the OMMA affirmative defense is unavailable to defendant because he did not receive medical marijuana advice within the 12 months preceding his arrest, I must also consider the alternative basis on which the state argues for affirmance. The state contends that a person is entitled to pursue the affirmative defense only if the “debilitating medical condition” diagnosis that occurred within 12 months preceding the person’s arrest was made by the person’s attending physician. Because defendant’s recent diagnosis was made by a nurse practitioner — and not defendant’s attending physician — the state concludes that the trial court correctly ruled that he could not pursue the affirmative defense.
*442In that respect, too, I disagree with the state’s reading of ORS 475.319(1)(a). Again, I begin with the text of the statute, which provides that the affirmative defense may be available to a person who:
“Has been diagnosed with a debilitating medical condition within 12 months prior to arrest and been advised by the person’s attending physician that the medical use of marijuana may mitigate the symptoms or effects of that debilitating medical condition [.]”
That provision does not state who must have diagnosed the defendant with a debilitating medical condition within the pertinent time period. Rather, it states — using the passive voice — that the person must have “been diagnosed with a debilitating medical condition within 12 months prior to arrest.” In comparison, the second part of the statute, related to medical marijuana advice, provides that that information must come from a physician, as the person must have “been advised by the person’s attending physician” that medical marijuana use could be beneficial. ORS 475.319(1)(a). To interpret the statute as requiring the diagnosis to have been made by the person’s attending physician would impermissibly insert what the legislature omitted. See ORS 174.010 (in construing a statute, a judge should not “insert what has been omitted”).
The state argues, nonetheless, that consideration of statutory context reveals that the affirmative defense is available only to people whose attending physicians have diagnosed their debilitating medical conditions. Otherwise, the state argues, medical marijuana use would be permissible “based on a diagnosis from an unqualified individual.” I disagree because I have found nothing in the OMMA that requires the diagnosis of a debilitating medical condition to have been made by the debilitated person’s attending physician, rather than by another qualified medical professional, like a nurse practitioner who has diagnostic authority.5 To *443the contrary, although various OMMA provisions require a cardholder’s attending physician to state or certify that the cardholder has been diagnosed with a debilitating medical condition, nothing requires that the attending physician have made that diagnosis himself or herself. See, e.g., ORS 475.302(1) (defining “[attending physician” as a licensed physician “who has primary responsibility for the care and treatment of a person diagnosed with a debilitating medical condition” (emphasis added)); ORS 475.309(2)(a) (requiring a cardholder applicant to provide “documentation from the person’s attending physician stating that the person has been diagnosed with a debilitating medical condition” (emphasis added)).
Moreover, the OMMA does explicitly describe some duties that fall to the attending physician, and not to other health care professionals. For example, the Oregon Health Authority must verify that a person applying for a registry identification card has “consult [ed] with an attending physician regarding the medical use of marijuana.” ORS 475.309(5)(b)(A). Similarly, a person under 18 years of age cannot obtain a registry identification card unless his or her attending physician has explained, both to that young person and to the young person’s custodial parent or legal guardian “the possible risks and benefits of the medical use of marijuana.” ORS 475.309(3)(a). And, as pertinent here, a person may qualify for the OMMA affirmative defense only if the person has “been advised by the person’s attending physician that the medical use of marijuana may mitigate the symptoms or effects of’ the person’s debilitating medical condition. ORS 475.319(1)(a) (emphasis added). Thus, the OMMA appears to contemplate that a person who wishes either to obtain a registry identification card or to raise the OMMA affirmative defense must have received advice from his or her attending physician about the possible benefits of *444medical marijuana use, but could have been diagnosed by another professional who has diagnostic authority.6
Accordingly, I would reject the state’s argument that we should affirm the trial court’s ruling on the ground that the person who diagnosed defendant’s debilitating medical condition was a nurse practitioner, not defendant’s attending physician. Because I also disagree with the trial court’s ruling regarding the significance of the words “within 12 months prior to arrest” in ORS 475.319(1)(a), as explained above, I would reverse and remand for a new trial on the marijuana possession charge. I respectfully dissent from the majority’s contrary holding.
I agree with the majority’s decision to reject defendant’s challenge to his stalking conviction. See State v. Luster, 271 Or App 425, 426, 350 P3d 575 (2015).
Those requirements for initial issuance of a registry identification card have remained unchanged since 1999. However, one requirement since has been added. Now, each applicant for a registry identification card must also provide a “written statement that indicates whether the marijuana used by the cardholder will be produced at a location where the cardholder or designated primary caregiver is present or at another location.” ORS 475.309(2)(e). The addition of that requirement does not affect my analysis.
The parties have not cited, and I am not aware of, any legislative history that shines further light on the 1999 legislature’s intent in adding “within 12 months prior to arrest” to ORS 475.319 (1)(a).
The 2007 legislature also amended ORS 475.309(8), so that it now requires a cardholder to return the card if the cardholder’s attending physician either has diagnosed the person “as no longer having a debilitating medical condition” or “has determined that the medical use of marijuana is contraindicated.”
Nurse practitioners are authorized to diagnose at least certain medical conditions. See ORS 678.010(6) (defining “[n]urse practitioner” to mean “a registered nurse who has been certified by the board as qualified to practice in an expanded specialty role within the practice of nursing”); ORS 678.010(8) (defining the practice of nursing to include “diagnosing and treating human responses to actual or potential health problems”); ORS 678.380(1) (authorizing Oregon State Board of *443Nursing to adopt rules that “establish categories of nurse practitioner practice and define the scope of such practice”); OAR 851-050-0005(4) (“[w]ithin his or her medical specialty, the nurse practitioner is responsible for managing health problems encountered by the client and is accountable for health outcomes,” the process of which includes “[d]iagnosis”); OAR 851-050-0005(5) (nurse practitioners are “independently responsible and accountable for the continuous and comprehensive management of a broad range of health care,” which may include “[d]iagnosis of health/illness status”).
The Oregon Health Authority’s administrative rules are consistent with my interpretation of ORS 475.319(1)(a). Like the statutes, they do not specify who must have diagnosed a person with a debilitating medical condition. Rather, the rules explain that a person’s attending physician is a physician “who has primary responsibility for the care and treatment of a person diagnosed with a debilitating medical condition” OAR 333-008-0010(3) (emphasis added), including a physician who acts as a “consultant,” having been asked by “the patient’s nurse practitioner” to “examine and treat the patient.” OAR 333-008-0010(23)(c).