5/9/16 In State v. Robert Gear, the defendant is a phyisician. He was indicted in Navajo County Superior Court for one count of forgery under A.R.S. § 13–2002 and one count of fraudulent schemes and artifices under A.R.S. § 13–2310. The basis of the prosecution is a contention that the defendant falsely attested he had reviewed a patient’s medical records from the previous twelve months before providing a written certification authorizing medical marijuana use under the Arizona Medical Marijuana Act (AMMA).
The facts relevant to the case are:
On September 1, 2012, a Navajo County drug task force confidential informant (“C.I.”), in connection with an undercover investigation of an alleged illicit medical marijuana cooperative, visited the defendant, Dr. Robert Gear, to obtain a written certification for medical marijuana. The C.I. completed a questionnaire and medical records statement. On the latter form, she indicated that she had visited other physicians within the past twelve months but did not “have a complete set of medical records with [her].” The C.I. agreed to furnish the records to the defendant no later than her next visit. Following a medical examination, the defendant certified the C.I. for medical marijuana use. Despite never reviewing her medical records from the preceding twelve months, the defendant indicated on the written certification that he had done so. The defendant also attested that “the information provided in the written certification is true and correct.”
The requirement of the attestation is set forth in Department of Health Services (DHS) Regulations and not the AMMA itself. § 36–2811(C) of the AMMA provides:
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 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.
The Navajo County Superior Court dismissed the indictment by holding A.R.S. § 36-2811(C) immunized the physician from prosecution for acts performed under that section. The court of Appeals affirmed the dismissal and the State appealed that ruling to the Arizona Supreme Court.
In State v. Gear, No. CR-14-0408-PR9, (5/6/16), the Arizona Supreme Court held that A.R.S. § 36-2811(C) does not immunize a physician from prosecution for making false statements under the AMMA.
Before making its decision the court noted that it was not deciding the issues of whether the DHS requirement that a physician review twelve months of prior physician records before certifying a patient for medical marijuana falls within the prescribed scope of the agency’s regulatory authority under AMMA or the propriety of the undercover investigation that resulted in Dr. Gear’s indictment.
The court held that A.R.S. § 36-2811(C) immunizes a physician from prosecution for two actions. First, for providing the written certification and, second, for otherwise stating the physician’s medical judgment. The court said the prosecution is not directed toward immunized conduct but is instead based on the contention the defendant falsely attested he inspected medical records that he did not in fact review, which if true would have been an act of dishonesty which are not immunized under the act. In deciding it the court noted that if, as the defendant argued, all “conduct” in connection with the issuance of the certificate was immunized, then conduct such as theft or sexual assault committed in the course of a physical examination conducted during the certification process would be also immunized, which was not logical.
The case will be remanded back to the Navajo County Superior Court where the defendant can be prosecuted for the two charges.
Audio of the argument before the Supreme Court can be found at:
http://supremestateaz.granicus.com/MediaPlayer.php?view_id=2&clip_id=1893
The Supreme Court Opinion can be found at:
http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2016/CR140408PR.pdf
If you’ve been charged with DUI or another criminal offense, getting help from an experienced and knowledgeable lawyer is one of the best things you can do for your case. Gordon Thompson has been practicing criminal and DUI law since 1979, and has used his vast experience to help countless people charged with DUI and other criminal offenses get the best result. Call Gordon Thompson now, 24/7, so he can put his many years of experience to use and help you get the best result for your DUI or criminal case.
