IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellant,

v.

ROBERT GEAR,

Appellee.

No. CR-14-0408-PR

Filed May 6, 2016

Appeal from the Superior Court in Navajo County

The Honorable Ralph E. Hatch, Judge

No. CR-2013-00089

REVERSED AND REMANDED

Opinion of the Court of Appeals, Division One

236 Ariz. 289, 339 P.3d 1034 (App. 2014)

VACATED

COUNSEL:

Brad Carlyon, Navajo County Attorney, Galen H. Wilkes (argued), Deputy 

Navajo County Attorney, Holbrook, Attorneys for State of Arizona

Kimberly A. Kent (argued), Kent Law Group, PLLC, Phoenix, Attorney for 

Robert Gear

William G. Montgomery, Maricopa County Attorney, Bruce P. White, 

Joseph J. Branco, and Diane Meloche, Deputy County Attorneys, Phoenix, 

Attorneys for Amicus Curiae Maricopa County Attorney

Mark Brnovich, Arizona Attorney General, John R. Lopez IV (argued), 

Solicitor General, Maria M. Syms, Assistant Attorney General, Phoenix, 

Attorneys for Amicus Curiae Arizona Attorney General Mark Brnovich
STATE v. GEAR

Opinion of the Court

2

JUSTICE BOLICK authored the opinion of the Court, in which CHIEF 

JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES

BRUTINEL and TIMMER joined.

JUSTICE BOLICK, opinion of the Court:

¶1 This case presents the question of whether the Arizona 

Medical Marijuana Act (“AMMA” or “the Act”) immunizes a physician 

against prosecution for falsely attesting that he reviewed a patient’s medical 

records from the previous twelve months before providing a written 

certification authorizing medical marijuana use. We hold that AMMA does 

not grant such immunity.

I. BACKGROUND

A. Arizona Medical Marijuana Act

¶2 Arizona voters enacted AMMA, A.R.S. § 36–2801, et seq., by 

ballot initiative in 2010 (Proposition 203). The Act provides that a 

“qualifying patient” diagnosed with a “debilitating medical condition” 

may obtain a registry card from the Arizona Department of Health Services 

(“DHS”), and thereby obtain immunity from prosecution for the 

acquisition, possession, and use of medical marijuana under the statutory 

conditions. See A.R.S. §§ 36–2801(3), (13), –2804.02, –2811(B).

¶3 To register with DHS, a qualified patient must first obtain a 

physician’s “written certification,” which AMMA defines 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.
STATE v. GEAR

Opinion of the Court

3

(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). AMMA does not define “physician-patient 

relationship” or “full assessment of the qualifying patient’s medical 

history.”

¶4 Physicians are immunized from prosecution for providing 

written certifications under AMMA. At issue here is § 36–2811(C), which 

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.

A.R.S. § 36-2811(C). 

¶5 In addition to immunizing certain individuals against 

prosecution or punishment in the medical marijuana context, “the 

electorate ‘required’ [DHS] ‘to adopt and enforce a regulatory system for 

the distribution of marijuana for medical use.’” State v. Matlock, 237 Ariz. 

331, 336 ¶ 20, 350 P.3d 835, 840 (App. 2015) (quoting Proposition 203 ballot 

pamphlet). Section 36–2803 gives DHS certain rulemaking authority, 

including the power under § 36-2803(A)(2) of “[e]stablishing the form and 
STATE v. GEAR

Opinion of the Court

4

content of registration and renewal applications submitted under this 

chapter.” By regulation, DHS specified what is required to perform a “full 

assessment of the qualifying patient’s medical history,” including 

reviewing the patient’s “medical records from other treating physicians 

from the previous 12 months.” Ariz. Admin. Code R9–17–202(F)(5)(i)(i). 

The regulation also requires the physician to attest to the truth and accuracy 

of the information set forth in the written certification. Id. at R9-17-

202(F)(5)(m).

B. Facts and Procedural History

¶6 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 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 Dr. Gear no later than her 

next visit.

¶7 Following a medical examination, Dr. Gear certified the C.I. 

for medical marijuana use. Despite never reviewing her medical records 

from the preceding twelve months, he indicated on the written certification 

that he had done so. He also attested that “the information provided in the 

written certification is true and correct.”

¶8 A grand jury indicted Dr. Gear on one count of forgery under 

A.R.S. § 13–2002 and one count of fraudulent schemes and artifices under 

§ 13–2310. The trial court dismissed the indictment, ruling that § 36–

2811(C) immunizes Dr. Gear against prosecution on those charges. The 

court of appeals affirmed. State v. Gear, 236 Ariz. 289, 339 P.3d 1034 (App.

2014).

¶9 We granted review because the scope of AMMA’s physician 

immunity under § 36-2811(C) presents a recurring issue of statewide 

importance. We have jurisdiction under article 6, section 5(3) of the Arizona 

Constitution and A.R.S. § 12-120.24.
STATE v. GEAR

Opinion of the Court

5

II. DISCUSSION

¶10 We begin by noting two issues that are not before us. First, 

the parties have not addressed 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. Second, we do not 

address the propriety of the undercover investigation that resulted in Dr. 

Gear’s indictment.

¶11 Rather, the sole question before this Court is whether AMMA 

immunizes the alleged false statements Dr. Gear made in his certification. 

We review questions of statutory interpretation de novo and construe ballot 

measures to effect the voters’ intent. Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 

122 ¶ 6, 347 P.3d 136, 139 (2015). AMMA’s “purpose . . . 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.” Prop. 203, § 2(G), Ariz. Sec’y of State, 2010 Publicity Pamphlet 

83, available at

http://apps.azsos.gov/election/2010/Info/PubPamphlet/English/Prop2

03.htm.

¶12 Both the State and Dr. Gear urge constructions that do not 

find support in the Act’s language or intent. The State argues that physician 

immunity extends only to “providing” written certifications, and not 

“preparing” them. The State’s constricted reading of the word “providing,” 

however, would render the immunity almost meaningless, as a physician 

could be prosecuted for each step short of delivering the certification to the 

patient.

¶13 Dr. Gear argues that physician immunity extends to any 

conduct “related to certification.” Such a sweeping application of 

immunity could lead to troublesome outcomes that would be difficult to 

square with the intent or language of the Act. For instance, would 

immunity extend to theft or sexual assault committed in the course of a 

physical examination conducted during the certification process? Dr. 
STATE v. GEAR

Opinion of the Court

6

Gear’s interpretation is foreclosed by the Act’s language, which in relevant 

part provides immunity from prosecution “based solely on providing 

written certifications.” A.R.S. § 36-2811(C).

¶14 Dr. Gear does not point to any language or voter intent 

indicating that AMMA is meant to immunize individuals against 

prosecution for other crimes they may commit that are related to or arise 

from the protected activity. As discussed below, the use of the word 

“solely” expresses the intent to shield from criminal prosecution only the 

provision of medical marijuana certifications and professional opinions, not 

other conduct that might expose the physician to adverse consequences, 

even if that conduct is related to providing a written certification or 

expressing a professional opinion.

¶15 In interpreting § 36-2811(C), the court of appeals did not 

consider the qualifier “solely,” but instead noted that the statute grants 

immunity for “providing written certification or for otherwise stating that, in 

the physician’s professional opinion, a patient is likely to receive” benefit 

from medical marijuana. Gear, 236 Ariz. at 292 ¶ 11, 339 P.3d at 1037

(quoting A.R.S. § 36-2811(C)). This language immunizes two different 

though related types of actions: “providing written certification” and 

“otherwise stating” the physician’s medical judgment. By applying the 

term “solely,” the immunity is limited to those two actions and excludes 

from immunity any act that goes beyond those actions, even if it is related 

to them. Here the prosecution is not directed toward immunized conduct 

but is instead based on Dr. Gear falsely attesting that he inspected medical 

records that he did not, in fact, review.

¶16 If, as here, the criminal charges are not based “solely” on 

protected conduct—where they are directed not toward the medical 

judgment or the certification itself but to an act of dishonesty—then they 

are not shielded from prosecution or punishment by the Act’s plain 

language. “Solely,” both in ordinary usage1 and as a legal term of art, is a 

highly restrictive term that consistently has been interpreted, including in 

the context of medical marijuana decisions, to strictly limit the scope of the 

 

1 Solely is defined as “singly” or “alone.” See Webster’s Third New 

International Dictionary 2168 (2002).
STATE v. GEAR

Opinion of the Court

7

legal protection or proscription that follows.

¶17 In Dobson v. McClennen, 238 Ariz. 389, 361 P.3d 374 (2015), this 

Court affirmed the conviction of a defendant charged with driving with an 

impermissible drug or metabolite in her body. The defendant argued that 

AMMA immunized her as a medical marijuana cardholder from 

prosecution for driving under the influence (DUI). The Court recognized 

that “AMMA broadly immunizes [cardholders] from prosecution for using 

medical marijuana consistent with the Act.” Id. at 390 ¶ 1, 361 P.3d at 375. 

At the same time, Arizona criminal statutes prohibit, among other things, 

driving while there is any specified drug, including cannabis or its 

metabolite, in the person’s body. Id. at ¶ 2, 361 P.3d at 375. As here, the 

case presented the interplay between criminal statutes and medical 

marijuana immunity.

¶18 Dobson is not a perfect analogy because AMMA specifically 

provides that the state is not prohibited from prosecuting individuals for 

operating a motor vehicle while under the influence of marijuana. See

A.R.S. § 36–2802(D). But central to the Court’s analysis in Dobson was the 

language of the statutory immunity, which provides that “a registered 

qualifying patient shall not be considered to be under the influence of 

marijuana solely because of the presence of metabolites or components of 

marijuana that appear in insufficient concentration to cause impairment.” 

238 Ariz. at 391 ¶ 9, 361 P.3d at 376 (emphasis added) (quoting A.R.S. § 36-

2802(D)). The Court found unconvincing the argument that such language, 

qualified by the term “solely,” provides absolute immunity against DUI

charges. Id. at 392 ¶ 15, 361 P.3d at 377. Rather, the Court held, “When read 

together, the statutory provisions suggest that the AMMA gives qualifying 

patients a limited defense rather than a general immunity” in the context of 

DUI prosecutions, id. at ¶ 17, 361 P.3d at 377, allowing defendants to 

demonstrate that the concentrations of marijuana were insufficient to cause 

impairment. Id. at 393 ¶ 21, 361 P.3d at 378 (“The risk of uncertainty in this 

regard should fall upon the patients, who generally know or should know 

if they are impaired and can control when they drive, rather than on the 

members of the public whom they encounter on our streets.”).

¶19 Similar reasoning applies here. Dr. Gear is not being 

prosecuted for providing a written certification but for lying about 
STATE v. GEAR

Opinion of the Court

8

compliance with rules issued by DHS, whose authority Dr. Gear does not 

contest. Given the restrictive effect of the term “solely,” we do not impute 

intent on the part of the voters to immunize physicians against crimes such 

as forgery or fraudulent schemes. Holding otherwise would expose 

Arizonans, including medical marijuana cardholders themselves, to 

harmful conduct that we should not lightly infer that the voters sought to 

immunize. “When two statutes conflict, we adopt a construction that 

reconciles them whenever possible, giving force and meaning to each.” 

State v. Jones, 235 Ariz. 501, 502 ¶ 6, 334 P.3d 191, 192 (2014). Our 

interpretation here preserves both AMMA’s broad physician immunity and 

the criminal statutes under which Dr. Gear was charged. 

¶20 Courts in California, whose medical marijuana laws predate 

Arizona’s, likewise have narrowly construed immunity from prosecution 

when limited by the statutory adjective “sole.” In People v. Mentch, 195 P.3d 

1061 (Cal. 2008), the California Supreme Court construed an immunity 

provided to primary caregivers in the medical marijuana context. One of 

the questions before the court was whether a provision that immunized 

such individuals against prosecution for assisting in administering, 

advising, or counseling in the administration or cultivation of medical 

marijuana “on that sole basis” would preclude prosecution of such 

individuals for marijuana cultivation or possession. Id. at 1072. The court 

held that the words “on that sole basis” did not mean that the defendant 

“could not be charged with cultivation or possession for sale on any basis; 

to the extent that he went beyond the immunized range of conduct, i.e., 

administration, advice, and counseling, he would, once again, subject 

himself to the full force of the criminal law.” Id. at 1073. Other California 

decisions also have narrowly construed the scope of the state’s medical 

marijuana laws when qualified by the term “sole basis” in the public 

nuisance context. See City of Riverside v. Inland Empire Patients Health & 

Wellness Ctr., Inc., 300 P.3d 494 (Cal. 2013) (rejecting the argument that 

medical marijuana laws preempt local ban on dispensaries); Kirby v. Cty. of 

Fresno, 242 Cal. App. 4th 940 (2015) (concluding that the medical marijuana 

laws did not preempt city’s ability to regulate the cultivation of marijuana). 

Here, too, Dr. Gear “went beyond the immunized range of conduct”—

providing written certifications or expressing professional opinions—to 

falsely avow that he had reviewed certain medical records. As a result, he 

subjected himself to the full force of criminal prosecution—not for his 
STATE v. GEAR

Opinion of the Court

9

professional medical opinions, which are protected, but for his false 

misrepresentation of fact, which is not.

¶21 We are not convinced by Dr. Gear’s argument that affording 

immunity here is supported by § 36–2811(C)’s statement that “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.” 

That a physician may be professionally disciplined for malpractice in 

connection with certifying a patient for medical marijuana use does not, 

either by the statutory terms or logically, suggest that such discipline is the 

only sanction for making false statements in a certification.

¶22 Nor are we persuaded that allowing the prosecution to 

proceed “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.” Gear, 236 Ariz. at 294 

¶ 21, 339 P.3d at 1039. Nothing in our opinion should be read to limit or 

threaten such protected activities. Cf. Reed-Kaliher, 237 Ariz. at 122 ¶ 7, 347 

P.3d at 139 (protecting the AMMA rights of probationers). Physicians are 

trained and relied upon to be scrupulous. The import of a false attestation 

is obvious. The boundaries between law enforcement and protected 

physician activities were fixed when the voters forbade prosecution and 

punishment based “solely” upon the specified protected activities.

¶23 In sum, AMMA immunizes physicians from prosecution or

penalties based solely on their providing the statutorily authorized 

certifications or otherwise stating a professional opinion regarding the

therapeutic and palliative benefits of medical marijuana use. It does not 

immunize other conduct, such as making a false statement in a written 

certification.

III. CONCLUSION

¶24 For the foregoing reasons, we vacate the opinion of the court 

of appeals, we reverse the trial court’s order of dismissal, and remand the 

case to the trial court for further proceedings consistent with this decision.