                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                   TRAVIS LANCE DARRAH, Petitioner,

                                        v.

  THE HONORABLE CRANE MCCLENNEN, Judge of the SUPERIOR
   COURT OF THE STATE OF ARIZONA, in and for the County of
               MARICOPA, Respondent Judge,

     CITY OF MESA PROSECUTOR’S OFFICE, Real Party in Interest.

                             No. 1 CA-SA 14-0054
                               FILED 8-31-2017


 Petition for Special Action from the Superior Court in Maricopa County
                        No. LC2013-000517-001 DT
             The Honorable Crane McClennen, Judge, Retired

                             RELIEF GRANTED


                                   COUNSEL

Benikov Law Firm, Phoenix
By Alexander Y. Benikov
Counsel for Petitioner

Mesa City Prosecutor’s Office, Mesa
By W. Craig Jones
Counsel for Real Party in Interest
           DARRAH v. HON. MCCLENNEN/CITY OF MESA
                      Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Margaret H. Downie joined.


B R O W N, Judge:

¶1            In this special action, we consider whether the municipal
court erred by precluding petitioner, Travis Lance Darrah, from presenting
evidence that his marijuana use was authorized by the Arizona Medical
Marijuana Act (“AMMA”). For the reasons set forth below, we grant relief
by vacating Darrah’s conviction and remanding to the municipal court for
further proceedings consistent with this decision.

             FACTS AND PROCEDURAL BACKGROUND

¶2            The State charged Darrah, an authorized medical marijuana
user under the AMMA, with two counts of driving under the influence
(“DUI”). Count one alleged a violation of Arizona Revised Statutes
(“A.R.S.”) section 28-1381(A)(1), which prohibits a person from driving a
vehicle while under the influence of drugs “if the person is impaired to the
slightest degree.” Count two alleged a violation of § 28-1381(A)(3), which
prohibits driving while there is a prohibited drug or its metabolite in the
person’s body. Testing revealed that Darrah had 4.0 ng/ml of delta-9-
tetrahydrocannabinol (“THC”), an active component of marijuana, in his
blood.

¶3            Before trial, the municipal court granted the State’s motion in
limine to preclude evidence that Darrah possessed a medical marijuana
card at the time of the offense, ruling that the card was irrelevant to the
charge. The jury acquitted Darrah of driving while impaired under A.R.S.
§ 28-1381(A)(1) but found him guilty of driving while marijuana or its
metabolite was in his body under § 28-1381(A)(3).

¶4            On appeal, the superior court affirmed Darrah’s conviction,
and he petitioned for special action relief. We accepted special action
jurisdiction but denied relief, holding that the AMMA did not bar the State
from prosecuting Darrah under (A)(3). Darrah v. McClennen (Darrah I), 236
Ariz. 185, 185-86, ¶¶ 1, 4 (App. 2014). We therefore affirmed the conviction
and sentence. Id. at 187, ¶ 8. Darrah then sought review by the Arizona
Supreme Court.


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           DARRAH v. HON. MCCLENNEN/CITY OF MESA
                      Decision of the Court

¶5            While Darrah’s petition for review was pending, the supreme
court decided Dobson v. McClennen, 238 Ariz. 389 (2015), holding that
although the AMMA does not categorically bar prosecuting an authorized
marijuana user for DUI under (A)(3), A.R.S. § 36-2802(D) provides a
“limited” affirmative defense. 238 Ariz. at 392-94, ¶¶ 17, 23. Thus, a
registered qualifying patient is entitled to present evidence that his or her
marijuana use was authorized by the AMMA, and that the amount of
marijuana in the patient’s body was in an amount insufficient to cause
impairment. Id. at 393, ¶ 20. The court further held, however, that the error
was harmless, because the defendants “made no effort to show that the
marijuana in their bodies was in an insufficient concentration to cause
impairment.” Id. at ¶ 22. The supreme court then vacated our decision in
Darrah I, and directed us to reconsider this case in light of Dobson. Darrah
v. McClennen/Mesa, No. CV-14-0303-PR, 2015 WL 7759889, at *1 (Ariz. Dec.
1, 2015) (order). The parties then submitted supplemental memoranda to
this court addressing Dobson.

¶6             In the meantime, a different panel of this court decided Ishak
v. McClennen, 241 Ariz. 364 (App. 2016), which applied Dobson in a special
action involving a defendant convicted of DUI who argued he was
wrongfully denied the opportunity to present evidence that he possessed a
valid medical marijuana card at the time of the offense. See 241 Ariz. at 365-
66, ¶¶ 1, 3. In a split decision, the court vacated the defendant’s conviction,
concluding the municipal court’s error in precluding AMMA-related
evidence was not harmless. Id. at 368-69, ¶¶ 12, 21. In light of Dobson and
Ishak, we now consider whether the municipal court erred by precluding
Darrah from presenting evidence that his marijuana use was authorized by
the AMMA.

                               DISCUSSION

¶7              When charged with violating § 28-1381(A)(3), a defendant
“may establish an affirmative defense to such a charge by showing”: (1)
“that his or her use was authorized by the AMMA . . . and [(2)] that the
marijuana or its metabolite was in a concentration insufficient to cause
impairment.” Dobson, 238 Ariz. at 393, ¶ 20. The defendant bears the
burden of proving the affirmative defense by a preponderance of the
evidence. See id.; A.R.S. § 13-205(A). If the defendant provides “more than
a mere scintilla of evidence” as to both elements of the Dobson affirmative
defense, the trial court must instruct the jury accordingly. See State v.
Strayhand, 184 Ariz. 571, 593-94 (App. 1995) (explaining that “[a] defendant
is entitled to an instruction on any theory of defense which is recognized by



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            DARRAH v. HON. MCCLENNEN/CITY OF MESA
                       Decision of the Court

law and supported by the evidence,” and “an instruction must be given if
there is evidence upon which the jury could rationally sustain the defense”).

¶8            The State alleges that the Dobson affirmative defense requires
proof that the concentration of marijuana in a cardholder’s bloodstream is
insufficient to cause impairment in any person, not just the charged
cardholder. But even assuming such a requirement, the State’s argument
fails. Although the State asserts there was “a complete lack of evidence”
supporting the affirmative defense, Darrah presented evidence (including
his own testimony) from which the jurors could have concluded that
Darrah established the affirmative defense if they had been instructed
consistent with the statutory language underlying the defense.1

¶9             Dobson did not qualify the type of evidence a defendant must
present to establish the affirmative defense under the AMMA. Rather, the
supreme court acknowledged there is no widely accepted concentration of
marijuana considered objectively sufficient to cause impairment; thus, the
burden of proving the affirmative defense is on the cardholder, who
“generally know[s] or should know” whether he or she is impaired and
unable to safely control a vehicle. Dobson, 238 Ariz. at 393, ¶ 21 (citing State
ex rel. Montgomery v. Harris, 234 Ariz. 343, 346, ¶ 20 (2014)); see also Ishak, 241
Ariz. at 368, ¶ 16. In Ishak, the majority therefore held that the affirmative
defense articulated in Dobson may be established “by, inter alia, cross-
examining the arresting officer and the State’s expert forensic scientist
and/or by offering any admissible evidence (including his or her own
testimony) relevant to proving whether he or she was impaired at the time
of the stop.” 241 Ariz. at 369, ¶ 20. As such, a cardholder’s individualized
opinion that he or she was not impaired at the time of the offense may be
relevant to establishing the Dobson affirmative defense. See id. at 368, ¶ 18.

¶10          Ishak rejected the State’s argument that the defendant must
present expert testimony to establish the affirmative defense. Id. at 367-68,

1       We note that in Ishak, the majority rejected the argument that the
affirmative defense requires a showing that the concentration of marijuana
in the body was insufficient to cause impairment in any person. The
majority held that the affirmative defense “requires proof that he or she was
not actually impaired, not whether, in the abstract, the same THC
concentration could not impair any human being.” 241 Ariz. at 367, ¶ 14.
The dissenting judge concluded that a defendant can be convicted without
regard to “actual impairment” if the concentration of THC or its metabolite
is in an amount sufficient to cause impairment in people generally. Id. at
370-71, ¶¶ 27-28 (Howe, J., concurring in part and dissenting in part).


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           DARRAH v. HON. MCCLENNEN/CITY OF MESA
                      Decision of the Court

¶¶ 13, 17-18. The court noted that in Dobson, although the defendants did
not present expert testimony, our supreme court did not find harmless error
on that basis, but rather, the error was harmless because the defendants
“made no effort to show that the marijuana in their bodies was in an
insufficient concentration to cause impairment.” Id. at 368-69, ¶ 19 (quoting
Dobson, 238 Ariz. at 393, ¶ 22). The Dobson court thus left open the
possibility that the affirmative defense may be established through
evidence other than expert testimony, including, for example, evidence
demonstrating a lack of actual impairment. Id. at 368-69, ¶¶ 18-19.

¶11            Here, Darrah testified that he was not impaired while driving
at the time of the offense:

       Q: At the time that you were with the officers that night, were
       you under the influence of marijuana, cannabis, THC?

       A: No. I hadn’t used since the night before. And I didn’t feel
       like I was under the influence at that time when he pulled me
       over, and I even verbally expressed my opinion to him on
       several different levels.

       Q: Okay. When you were doing the field sobriety tests, were
       you feeling the effects of marijuana?

       A: No.

¶12            Moreover, the municipal court considered expert testimony
from the State’s expert that arguably supported Darrah’s affirmative
defense. On cross-examination, the State’s expert testified that while the
concentration of marijuana found in Darrah’s blood, 4.0 ng/ml of THC, may
have been sufficient to cause impairment, it was not possible to conclude,
to a legal certainty, that Darrah was in fact impaired. The expert explained
that the concentration level at which Darrah tested was below the range at
which impairment is likely and was instead in the range at which
impairment could possibly result. The expert further stated that there is no
consensus or agreement within the scientific community that a certain
number or amount of THC in a person’s body establishes impairment, and
she testified that she could not state for certain whether Darrah was
impaired.

¶13           Given this record, there was relevant evidence supporting the
second element of the Dobson affirmative defense (that the marijuana in his
system at the time of the offense was in a concentration insufficient to cause
impairment). See Ariz. R. Evid. 401 (“Evidence is relevant if . . . it has any


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           DARRAH v. HON. MCCLENNEN/CITY OF MESA
                      Decision of the Court

tendency to make a fact more or less probable than it would be without the
evidence.”). If Darrah had been permitted to present proof regarding the
first element (that he had consumed marijuana pursuant to the AMMA), he
would have been entitled to argue to the jury that his marijuana use was
authorized by the AMMA and that the concentration found in his body was
insufficient to impair his driving. See Strayhand, 184 Ariz. at 593-94
(recognizing a defendant’s entitlement to a jury instruction on a defense
recognized by law). And there was evidence from which a properly
instructed jury might have concluded that Darrah had established this
affirmative defense. Accordingly, the municipal court’s error precluding
Darrah from demonstrating that he possessed a valid Arizona medical
marijuana card was not harmless. See Dobson, 238 Ariz. at 393, ¶ 22
(explaining that “evidence of possession of a registry card would generally
be admissible in an (A)(3) prosecution” to show that the cardholder’s
marijuana use was authorized by the AMMA); see also Ishak, 241 Ariz. at
367, ¶ 12 (finding exclusion of the AMMA card was not harmless error
because the defendant had presented some evidence of the affirmative
defense).

                             CONCLUSION

¶14           Based on the foregoing, we grant relief by vacating Darrah’s
conviction and remanding to the municipal court for further proceedings
consistent with this decision.




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




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