                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                RAYMOND DANIEL ROBBINS, Appellant.

                             No. 1 CA-CR 15-0584
                               FILED 9-15-2016


          Appeal from the Superior Court in Maricopa County
                       No. CR2014-128866-001
         The Honorable Annielaurie Van Wie, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Christopher V. Johns
Counsel for Appellant
                           STATE v. ROBBINS
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Kenton D. Jones and Judge Randall M. Howe joined.


K E S S L E R, Judge:

¶1            Robbins appeals the superior court’s preclusion of evidence
regarding his possession of a registry identification card (“AMMA Card”)
pursuant to the Arizona Medical Marijuana Act (“AMMA”). See Ariz. Rev.
Stat. (“A.R.S”) §§ 36-2801 to -2819 (2014).1 He argues the court committed
reversible error by excluding evidence of his AMMA Card because doing
so precluded an affirmative defense under the AMMA. The State argues
the court did not err because evidence of Robbins’ AMMA Card was not
relevant to Robbins’ conviction under § A.R.S. 28-1381(A)(1) (2014)
(“Subsection (A)(1)”), and that any error regarding his conviction under
A.R.S. § 28-1381(A)(3) (“Subsection (A)(3)”) was harmless. For the reasons
stated below, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2            In June 2014 at approximately 1:45 a.m., police officers M and
R observed Robbins’ vehicle veer into the bicycle lane while making a left
turn. After following Robbins and noticing that he continued to weave in
and out of his lane, the officers conducted a traffic stop and noted a slight
odor of marijuana. When the officers asked Robbins for identification, he
presented his AMMA Card because he could not find his driver’s license.
Robbins stated he had smoked marijuana approximately two hours before
the encounter, but he denied having ingested alcohol and showed officers
he had an interlock device on his vehicle. An officer trained in DUI
detection arrived and administered field sobriety tests, noting that Robbins’
eyes were bloodshot and watery and that Robbins was unable to
successfully complete several of the tests. Based on Robbins’ driving,
physical signs, and poor performance on the tests, the officers arrested him
and obtained a blood sample. Blood testing revealed methamphetamine,
amphetamine, marijuana, and marijuana’s metabolites.



1      We cite to the current statutes unless changes material to this
decision have occurred.


                                     2
                            STATE v. ROBBINS
                            Decision of the Court

¶3             The State indicted Robbins on two counts of aggravated
driving or actual physical control while under the influence of intoxicating
liquor or drugs, both class 4 non-dangerous, repetitive felonies. The State
brought Count 1 pursuant to A.R.S. § 28-1381(A)(1), which criminalizes
driving while under the influence of any drug “if the person is impaired to
the slightest degree.” The State brought Count 2 pursuant to A.R.S. § 28-
1381(A)(3), which criminalizes driving “[w]hile there is any drug defined
in § 13-3401[2] or its metabolite in the person’s body.” The State also alleged
Robbins had nine prior felonies, was on probation at the time of the offense,
and that eight aggravating factors applied.

¶4            Before trial, the State sought to preclude testimony that
Robbins held an AMMA Card as a defense to Count 2, arguing the evidence
was not relevant to the Subsection (A)(3) charge. Although Robbins
conceded that the evidence would not affect the jury’s determination as to
Count 2, he nevertheless argued knowledge of his AMMA Card “would
take the sting out of the fact that he might be impaired.” The court granted
the State’s motion, with the caveat that the State could not suggest that
Robbins possessed marijuana illegally and had to treat marijuana in the
same manner it would treat any type of prescription drug.

¶5            The jury found Robbins guilty on both counts. At sentencing,
the State proved two prior felony convictions and all eight aggravating
factors. The superior court sentenced Robbins to an aggravated sentence of
twelve years’ imprisonment and community supervision for both counts,
the sentences to be served concurrently.

¶6            Robbins timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1) (2016), 13-4031 (2010), and 13-4033 (2010).

                               DISCUSSION

¶7            Robbins argues the superior court erred by precluding
evidence regarding his AMMA Card. He argues that: (1) he was entitled to
present evidence that went to an affirmative defense, and (2) the court’s
error affected the verdict because Robbins was unable to show that his
metabolite levels were impacted by his regular lawful use of marijuana.




2    Section 13-3401 includes marijuana, amphetamine,                     and
methamphetamine. A.R.S. § 13-3401(6), (19) (Supp. 2015).



                                      3
                            STATE v. ROBBINS
                            Decision of the Court

I.     Standard of Review

¶8              We review rulings on the admissibility of evidence for an
abuse of discretion, and we consider only the facts presented at the
suppression hearing. State v. Newell, 212 Ariz. 389, 396, ¶ 22 (2006). We
view the disputed evidence in the “light most favorable to its proponent,
maximizing its probative value and minimizing its prejudicial effect.” State
v. Harrison, 195 Ariz. 28, 33, ¶ 21 (App. 1998) (citation omitted). “When a
judge commits an error of law . . . in the process of reaching [a] discretionary
conclusion, he may be regarded as having abused his discretion.” Twin City
Fire Ins. Co. v. Burke, 204 Ariz. 251, 254, ¶ 10 (2003) (quotations and citations
omitted). Interpreting rules, statutes, and constitutional provisions raises
questions of law that we review de novo. E.g. Pima County v. Pima Cty. Law
Enforcement Merit Sys. Council, 211 Ariz. 224, 227, ¶ 13 (2005) (rule and
statute); Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 308, ¶ 2 (2003)
(statute and constitution).

¶9             Arizona law prohibits driving or being in actual physical
control of a vehicle while under the influence of certain substances. See
A.R.S. § 28-1381. The controlling statute, A.R.S. § 28-1381, addresses
various categories of DUI; Subsection (A)(1) focuses on impairment,
forbidding driving under the influence of any drug “if the person is
impaired to the slightest degree,” whereas Subsection (A)(3) focuses on the
presence of certain drugs or their metabolite in the person’s body. Id.; see
also Dobson v. McClennan, 238 Ariz. 389, 391, ¶ 10 (2015).3

¶10            The AMMA immunizes registered qualifying patients for
their medical use of marijuana, but it expressly denies immunity for
“[o]perating, navigating or being in actual physical control of any motor
vehicle . . . while under the influence of marijuana.” A.R.S. § 36-2802(D);
see also Dobson, 238 Ariz. at 391, ¶¶ 8-9. The AMMA clarifies 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.” A.R.S. § 36-2802(D). Thus, the AMMA provides an

3       Robbins’ trial proceeded while a petition for review was pending
before the Arizona Supreme Court in Dobson. However, the holding from
Dobson must be applied here because a “new rule for the conduct of
criminal prosecutions is to be applied retroactively to all cases, state or
federal, pending on direct review or not yet final, with no exception for
cases in which the new rule constitutes a ‘clear break’ from the past.”
Griffith v. Kentucky, 479 U.S. 314, 328 (1987).


                                       4
                           STATE v. ROBBINS
                           Decision of the Court

affirmative defense to a charge pursuant to Subsection (A)(3). Dobson, 238
Ariz. at 393, ¶¶ 19-20. This affirmative defense does not apply to Subsection
(A)(1). Id. at 391, ¶ 11.

II.    Subsection (A)(1)

¶11          Although Robbins concedes the affirmative defense does not
apply to Subsection (A)(1), he maintains the superior court erred by
precluding evidence regarding his possession of an AMMA Card.        He
argues any evidence that went to his tolerance for drugs was relevant to
determining “impairment” pursuant to Subsection (A)(1). We disagree.

¶12           Under Subsection (A)(1), the State must only show that the
defendant took “any drug” that caused impairment. State v. George, 233
Ariz. 400, 403, ¶ 12 (App. 2013) (citation omitted). “Whether a particular
drug may cause a driver to be impaired is the driver’s responsibility,” and
the driver bears personal responsibility for taking a drug and driving. Id.
(citations omitted). Evidence of erratic driving, poor performance on field
sobriety tests, and physical signs of impairment constitute evidence of
impairment. See State ex rel. McDougall v. Albrecht, 168 Ariz. 128, 132 (App.
1991).

¶13           Here, the State presented evidence that Robbins showed signs
of impairment and that his blood tested positive for marijuana, marijuana’s
metabolites, methamphetamine, and amphetamine. Thus, Robbins’ failure
to successfully complete the field sobriety tests and the presence of
methamphetamine, amphetamine, and marijuana and its metabolites in his
blood sufficed to demonstrate Robbins’ guilt under Subsection (A)(1).
Robbins’ argument that the jury would have thought he was not impaired
because he had an AMMA Card is simply speculative. Therefore, the court
did not err by excluding the AMMA Card in regards to the Subsection
(A)(1) charge.

III.   Subsection (A)(3)

       A.    Whether the Superior Court Erred

¶14           Robbins argues the superior court erred by precluding the
evidence showing his possession of an AMMA card because he was entitled
to assert an affirmative defense against the Subsection (A)(3) charge. We
agree.

¶15          An AMMA patient may establish the affirmative defense to
Subsection (A)(3) by showing that: (1) the patient’s use was authorized by


                                     5
                             STATE v. ROBBINS
                             Decision of the Court

the AMMA, and (2) the marijuana or its metabolite was in a concentration
insufficient to cause impairment. Dobson, 238 Ariz. at 393, ¶ 20. Possession
of an AMMA Card creates a presumption that a qualifying patient is
engaged in the use of marijuana pursuant to the AMMA, so long as the
patient does not possess more than the permitted quantity of marijuana. Id.
at ¶ 19; A.R.S. § 36–2811(A)(1). Evidence of possession of an AMMA Card
is generally admissible in a Subsection (A)(3) prosecution to invoke this
presumption. Dobson, 238 Ariz. at 393, ¶ 22.

¶16           When this issue was before the superior court, neither the
parties nor the court had the benefit of the supreme court’s decision in
Dobson. However, under Dobson, Robbins was entitled to present an
affirmative defense to Subsection (A)(3) and to present evidence in support
of that defense. See A.R.S. § 13-205(A) (2010) (“[A] defendant shall prove
any affirmative defense raised by a preponderance of the evidence.”). The
court therefore erred by excluding evidence of Robbins’ AMMA Card. See
Twin City Fire, 204 Ariz. at 254, ¶ 10 (stating a court abuses its discretion
when it commits an error of law in making a discretionary conclusion).

       B.     Whether the Error was Harmless

¶17            Because the superior court erred in precluding evidence
relating to Robbins’ possession of an AMMA Card and Robbins objected to
such preclusion, we employ harmless error review. Harmless error review
places the burden on the State to prove beyond a reasonable doubt that the
error did not contribute to or affect the verdict. State v. Valverde, 220 Ariz.
582, 585, ¶ 11 (2009). “The inquiry . . . is not whether, in a trial that occurred
without the error, a guilty verdict would surely have been rendered, but
whether the guilty verdict actually rendered in this trial was surely
unattributable to the error.” State v. Bible, 175 Ariz. 549, 588 (1993) (citations
omitted). We consider the error in light of all the evidence. Id. (citation
omitted).

¶18            The State argues any error regarding the Subsection (A)(3)
conviction was harmless because substantial other evidence supported
Robbins’ conviction. It asserts the jury would still have concluded Robbins
had drugs in his system because sufficient evidence showed his blood
tested positive for methamphetamine and amphetamine. Robbins counters
that knowledge of his AMMA Card and status may have contributed to or
affected the jury’s deliberation and the factual allegation of whether traces
of amphetamine and methamphetamine were true. We agree with the
State.




                                        6
                           STATE v. ROBBINS
                           Decision of the Court

¶19           To convict Robbins under Subsection (A)(3), the State had to
prove beyond a reasonable doubt that Robbins had methamphetamine,
amphetamine, marijuana, or marijuana’s metabolites in his body while
driving. See A.R.S. §§ 28-1381, 13-3401. Subsection (A)(3) prohibits driving
with any amount of an impairing substance in the body, regardless of
impairment. State ex rel. Montgomery v. Harris, 234 Ariz. 343, 347, ¶ 24
(2014).

¶20           We conclude sufficient evidence supported Robbins’
conviction under Subsection (A)(3) and, accordingly, that the superior
court’s error regarding Robbins’ AMMA Card was harmless. In addition
to a blood test showing Robbins’ blood contained methamphetamine and
amphetamine, the State presented two expert witnesses who testified
regarding the methods used to test and confirm the blood results.
Regardless of the presence of marijuana and its metabolites in Robbins’
blood, sufficient evidence of the presence of methamphetamine and
amphetamine in Robbins’ blood supported the conviction under Subsection
(A)(3). We therefore conclude the court’s error was harmless.

                              CONCLUSION

¶21          For the foregoing reasons, we affirm Robbins’ convictions and
sentences.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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