Can a Conviction That is Set Aside Be Used to Revoke an AMMA Caregiver Card?

In a recent appellate decision, an Arizona man appealed from a lower court’s ruling affirming DHS’ order that revoked his caregiver registration card under the Arizona Medical Marijuana Act, A.R.S. §§ 36-2801 through 2810 (“AMMA“). The reason for the revocation was that the man had committed an excluded felony offense back in 2005 and was not eligible to be a designated caregiver under the statute.

The case arose in 2005 when the man pled guilty to possessing cocaine for sale, which was a class 2 felony. His sentence was suspended, he was fined, and he was put on probation for five years. He completed probation and paid the fine, and he was discharged from probation in 2008.

However, after that, he tried to have his 2005 conviction set aside under A.R.S. § 13-907. These motions were denied, and he tried again in 2012. but the superior court denied the motions. He tried again in February 2012. In two months, the court granted the application and formally set aside the judgment. The order also restored his civil rights except the right to possess or carry a firearm.

Two years after the order, the man applied to DHS to get an AMMA-based designated caregiver registration card. DHS required that he attest he’d not been convicted of an excluded felony under A.R.S. § 36-2801(7). The list of excluded felonies included any felony violation of federal or state controlled substances laws. The man signed the attestation, claiming he’d not been convicted, and sent in his fingerprints as required. The fingerprints were going to be used to run a criminal background check.

Usually, fingerprinting results in a criminal history report that must be reviewed for excluded felonies. In this case, since the AMMA required DHS to issue or deny the application within 15 days, the application was approved, and the card was issued before the background check was completed.

The criminal history report was received, and then DHS concluded that the 2005 conviction was an excluded felony offense that disqualified the man from being a caregiver under AMMA. It determined that setting aside a conviction didn’t eliminate it and would only restore civil rights that didn’t have to do with the AMMA caregiver card. The man received DHS’ notice of intent to revoke, which included the allegation that he’d knowingly violated AMMA by falsely attesting he’d never been convicted of an excluded felony offense.

The man asked for an administrative hearing, at which he argued the setting aside of his conviction should release him from all penalties and disabilities, including the ineligibility related to AMMA. The administrative law judge determined that DHS should revoke the registration card. It also decided that setting aside a conviction didn’t change that the man had been convicted of an excluded felony.

The man asked for a rehearing, which was denied, and the man asked the lower court to review. The court agreed with DHS.

The appellate court explained that ineligibility for a caregiver registration card under the AMMA isn’t a penalty or disability that is released after a conviction is set aside. In Arizona, somebody convicted of a crime can ask to have the judgment of guilty set aside once the sentence is complete and a discharge has occurred under A.R.S. § 13-907(A). However, this is considered a “special benefit conferred by statute.”

The statute specifically excludes from release various penalties and disabilities imposed by other agencies, including the Department of Transportation and the Department of Game and Fish. The statute also states that the conviction can be used as such if it would be admissible had it not been set aside and can be pled and proven in any subsequent prosecution. Accordingly, the conviction was sufficient to revoke the caregiver registration card.

If you are charged with any type of drug crime, contact criminal defense attorney James Novak at (480) 413-1499 in Tempe, Arizona.

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