Burden Of Impairment -History of Cannabis DUI in Arizona

The Smart And Safe Arizona Act, Prop. 207, changed multiple laws regarding cannabis in Arizona. Not only did Arizona voters decide in favor of adult use of cannabis, they also changed the cannabis DUI law, and in doing so it appears some toes feel stepped on.

The powers that be, mainly the Government, now have to shuffle their feet to a different tune.  That is because Prop 207 changed the legal dance between prosecution and defense. The passing of Prop. 207 changed the existing cannabis DUI law, which essentially left the burden of proof with the driver to prove innocence, to an equal and more reasonable law by shifting the burden of proof to the State to prove actual impairment.  It’s no surprise that one of the first bills dropped this legislative session was HB2084. This bill would change the tempo of the music back to a rhythm that law enforcement is used to.

Impaired While Driving or NOT

To better understand the dance, you must first understand the ballroom. Arizona Revised Statutes § 28–1381(A)(3) makes it unlawful for a driver to be in actual physical control of a vehicle if there is “any drug defined in [A.R.S.] § 13–3401 or its metabolite in the person’s body.”  This law was interpreted to mean that any metabolites from a substance that creates impairment is illegal to have in your body while driving, whether you are impaired while driving or NOT.

At least that was how it worked until 2014, when the Arizona Supreme Court heard the case of the STATE MONTGOMERY v. Hrach Shilgevorkyan. We aren’t going to go into much detail about the case, but if you want to learn more please HERE.

Inactive or Carboxy  THC

Montgomery v. Shilgevorkyan addressed the issue of if a driver is impaired for having inactive/ or carboxy  THC metabolites versus active/ or hydroxy THC metabolites. Carboxy THC Metabolites clings to your fat cells and can stay in your system for a questionable long time. Carboxy THC can be found in blood and UA tests. However, this is unlike active/ or hydroxy THC, which is best detected in the bloodstream.

The Arizona Supreme Court

Ultimately, the court held: “We are not persuaded and reject the State’s argument that § 28–1381(A)(3) ‘creates a flat ban on the presence of any drug or its metabolite in a person’s body while driving or in actual physical control of a vehicle …’”

Therefore, any metabolites for THC found a person’s body do not automatically make them guilty of a DUI. The Supreme Court understanding the difference between inactive/ or carboxy  THC metabolites and active/ or hydroxy THC metabolites was a game charger. Police could no longer use urinalysis to prove the impairment of a driver. This is at present why blood tests are the primary source used to prove impairment.

Card As A Defense

Then, about a year later in November 2015, another marijuana DUI case was ruled on by the Supreme Court.Dobson v. McClennen dealt with the extent to which the Arizona Medical Marijuana Act (or AMMA) can provide a defense to DUI charges. This case furthered the DUI law for medical marijuana patients to include active/ hydroxy THC. Again not going to go into detail but for more info HERE.

As a result of Dobson, defendants charged with marijuana DUIs now have a defense if both: (1) the defendant was using marijuana pursuant to a medical marijuana card under AMMA and (2) the marijuana or its metabolite was in a concentration insufficient to cause impairment.

This was the first case allowing medical cannabis patients to use their card as a defense.

Burden Of Proof

Nonetheless, the burden of proof still fell on the driver to prove there was no impairment at the time the blood test was conducted. This means defendants must bear the cost of hiring an expert witness and a good attorney. A public defender will generally suggest to take a plea deal, and that is ordinarily what happens. The cost of fighting a case like this goes far beyond what an average person has in their emergency fund.

And this is the way things have been, at least until the passing of Prop 207 Smart and Safe Act. According to Tom Dean, Attorney For Cannabis, “Prop. 207 is the best cannabis DUI law in the state of Arizona to date” and here is why.

According to Prop. 207, codified at Arizona Revised Statutes §
36-2852(B): NOTWITHSTANDING ANY OTHER LAW, A PERSON WITH METABOLITES OR COMPONENTS OF
MARIJUANA IN THE PERSON’S BODY IS GUILTY OF VIOLATING SECTION 28-1381, SUBSECTION A, PARAGRAPH 3
ONLY IF THE PERSON IS ALSO IMPAIRED TO THE SLIGHTEST DEGREE

Tom Dean says, “with the passing of 207,” the law now “shifts the burden to prove on the State to prove impairment to the slightest degree without a reasonable doubt. This takes the burden of proof off the average person who cannot afford costly legal battles with the state and puts it back where it belongs.”

HB2084

It’s fair to assume that shifting the burden of proof back off the responsibility of the state to prove impairment would be one of the primary things on the legislative agenda of 2021. House Bill 2084 was released the initial week of the legislation session on January, 11th. At first glance, it appears to be a bill handling marijuana DUI procedures pertaining to A.R.S. § 28-1381… until we reach this:

28-1381. H. IN A TRIAL, ACTION OR PROCEEDING FOR A VIOLATION OF THIS
18 SECTION, IT IS PRESUMED THAT A DEFENDANT IS UNDER THE INFLUENCE AND
19 IMPAIRED BY MARIJUANA IF THE DEFENDANT HAS A BLOOD CONCENTRATION OF 2.0
20 NANOGRAMS PER MILLILITER OR MORE OF TETRAHYDROCANNABINOL WITHIN TWO HOURS
21 OF THE TIME OF DRIVING OR BEING IN ACTUAL PHYSICAL CONTROL OF A VEHICLE AS
22 SHOWN BY AN ANALYSIS OF THE DEFENDANT’S BLOOD.

Voter Protection Act

But wait, isn’t there some kind of protection against legislation doing this to Smart And Safe?

Section 7. Voter Protection Act.
For the purposes of the Voter Protection Act, Ariz. Const. art. IV, pt. 1, § 1(6)(C), the People of the State of Arizona declare
that the following acts of the Legislature would further the purpose of this Act:

  1. Enacting a per se law for the presumption of marijuana impairment based on the concentration of delta-9
    tetrahydrocannabinol in a person’s body when scientific research on the subject is conclusive and the National Highway Traffic Safety
    Administration recommends the adoption of such a law.

Legal Poetry

Is HB 2084, considered lawful? The question falls on legal poetry between the words PER SE and PRESUMPTION.  Per se,” is a Latin phrase that means “by itself.” In other words, having a 0.08 BAC by itself means that you are guilty of driving while intoxicated without regard to any other evidence.

For a better explanation, we asked Tom Dean.

He claims, “When the state proves that a driver is at or above a per se level, he is considered guilty of DUI. When it’s only a presumption of impairment, it’s not a DUI per se because the driver is given an opportunity at trial to overcome the presumption by convincing the jury that he wasn’t impaired. In other words, other words, the burden of proof shifts to the driver to prove he wasn’t impaired, 207 places the burden of proof on the state to prove impairment beyond a reasonable doubt. 2084 seeks to modify 207 so that the burden of proof shifts the driver to overcome a legal presumption of impairment if he has two ng/ml or more.”

Director of Southern Arizona NORML and Secretary of Arizona NORML had this to say….

Mike Robinette, “ We believe this bill will run contrary to the Voter Protection Act and Prop 207.  Kavanagh is proposing a 2.0 nanogram/milliliter THC blood concentration within two hours of driving as evidence of impairment.  Prop 207 clearly states that a blood draw alone cannot be used as the determinant of impairment.  You must be proven impaired to the slightest degree.  Furthermore, Prop 207 clearly states that a blood concentration limit can only be added when scientific research is conclusive on the subject, and the National Highway Traffic Safety Administration recommends the adoption of such a law.  Lastly, it is interesting to note that Kavanagh has arbitrarily chosen a limit much lower than the 5 nanogram/milliliter limit used in Washington’s state.  While we clearly oppose impaired driving, we cannot support the less than scientific approach to regulating impaired driving as demonstrated by Rep. Kavanagh and what appears to be his willingness to violate the Voter Protection Act relative to Prop 207.”

If this law passes, personally I’m figuring out my blood THC ng while sober and filing it with my lawyers. It’s rumored an active med card patient would on average have four ng of active THC even while not impaired, but that’s a whole other article.   

Posted in ,