Arizona Court of Appeals Division One holds that the state may consider convictions that have been set aside in determining whether to grant, deny, or revoke a medical marijuana caregiver registration card.

An individual pled guilty to felony possession of cocaine for sale.  A court later set aside that conviction under A.R.S. § 13–907, releasing him from the “penalties and disabilities resulting from the conviction.”  When the individual later applied for a caregiver registration card under the Arizona Medical Marijuana Act (“AMMA”), the Arizona Department of Health Services revoked the caregiver registration card based on the set-aside felony.  That decision was confirmed through administrative challenges and affirmed by the superior court.  The individual appealed. 

The Court of Appeals affirmed.  A person with a recent felony drug conviction is not eligible for an AMMA caregiver registration card.  The AMMA provides no exception for convictions that are set aside.  Setting aside a conviction under A.R.S. § 13–907(C) releases a person from “penalties and disabilities,” but a set aside does not eliminate all consequences of a criminal conviction or make the conviction a nullity.  The Court of Appeals held that ineligibility for a caregiver registration card is not a penalty or disability that can be set aside.  It is a collateral consequence under the AMMA which is designed to protect the public.

Presiding Judge Howe authored the opinion; Judges Winthrop and Thompson concurred.