Arizona court ruling upholds DUI test for marijuana

[ 4/22/2014:  in what is presumably the final update, the Arizona Supreme Court ruled (here is same doc archived by azcentral) 4-1 that  it is not a DUI violation to be driving with the non-impairing marijuana metabolite in their bodies. In other words, the reversed the Court of Appeals ruling. Here’s a pretty good news item wrapup from the New Times. The lone dissenter offered a detailed analysis as part of the published opinion; I tend to side with her, that the majority overreached by concluding a flat ban, which is the plain language of the law, produces absurd results. But there you have it.]

This idea of any non-zero level of (a long list of) drugs, or their metabolites, being equated with driving impaired has always worried me; this recent CoA ruling affirms that this is proper. So, nothing to do with this case, i’m wondering if a decongestant, pseudophedrine (commonly found in many cold medicines) cause dui per 28-1381(A)3??? why or why not. I am chemistry challenged.

In the Court of Appeals, Div 1. No. 1 CA–SA 12–0211
STATE v. HON. HARRIS/SHILGEVORKYAN (if that link is dead findlaw0211). The caption of this case is a bit confusing,  the Real Party in Interest is Hrach Shilgevorkyan. Harris is the name of the Superior Court commisioner.

There are three ways to run afoul of Arizona’s DUI statue. The most common would be #2, BAC > .08 (referred to as drunk per se), typically anymore it is via blood evidence; another way is #1 being “under the influence… if … impaired to the slightest degree”, typically via field sobriety tests. The third way, and the one at issue here is #3, “While there is any drug … or its metabolite in the person’s body”.

28-1381. Driving or actual physical control while under the influence; trial by jury; presumptions; admissible evidence; sentencing; classification

A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.

2. If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle.

3. While there is any drug defined in section 13-3401 or its metabolite in the person’s body. (there is an exception later for drugs prescribed by a licensed practictioner)

 Oh, and looking at 13-3401, there isn’t just some list, there are many many lists, with many many many different chemicals mentioned. E.g. Testosterone; is it illegal to drive with testosterone in your system? Confused.

The Court of Appeal Opinion

synopsis: the defendant was charged with both 28-1381(A)(1), impaired to the slightest, and 28-1381(A)(3), having a prohibited substance present in his body (in this case, his urine). The first charge was dismissed before trial, leaving only the urine. The justice court dismissed the complaint based on a motion from the defense. The state then both moved for reconsideration (to justice court?), and appealed to Superior court. In any event the appeal to Superior court affirmed the justice court’s dismissal. The state then   sought a “special action review” from the Court of Appeals. The CoA at their discretion (i.e. they didn’t have to) accepted jurisdiction and reviewed the case.

Much of the legal gyrations revolved around the precise meaning of “its metabolite” and whether “its” is singular (the position of the defense; which was that there is one and only one proscribed marijuana metabolite, Hydroxy-THC; which was NOT found in the defendant’s urine), or plural (the state’s position). So the CoA reaffirmed their own prior decision on this point, Phillips, and slapped down the justice and superior court’s findings.

Interesting tidbits from the decision:

  • Our holding is consistent with A.R.S. § 1-214(B) (2012), which permits interpretation of “[w]ords in the singular number [to] include the plural” in order to effectuate legislative intent.
  • Ariz. R. Crim. P. 16.6(b). “If a defendant can admit to all the allegations charged in the [complaint] and still not have committed a crime, then the [complaint] is insufficient as a matter of law.”
  • the “statute created a flat ban on driving with any proscribed substance in the body, whether capable of causing impairment or not.” (my emphasis)

Arizona court ruling upholds DUI test for marijuana / Associated Press / Wed Feb 13, 2013 5:10 PM
PHOENIX — An appeals court has issued a ruling that upholds the right of authorities to prosecute pot smokers in Arizona for driving under the influence even when there is no evidence that they are actually high.

The ruling by the Court of Appeals focuses on the chemical compounds in marijuana that show up in blood and urine tests after people smoke pot. One chemical compound causes drivers to be impaired; another is a chemical that stays in people’s systems for weeks after they’ve smoked marijuana but doesn’t affect impairment.

The court ruled that both compounds apply to Arizona law, meaning a driver doesn’t have to actually be impaired to get prosecuted for DUI. As long as there is evidence of marijuana in their system, they can get a DUI, the court said.

The ruling overturns a decision by a lower court judge who said it didn’t make sense to prosecute a person with no evidence they’re under the influence.

The lower court judge cited the proliferation of states easing their marijuana laws, but the Court of Appeals ruling issued Tuesday dismissed that by saying Arizona’s medical marijuana law is irrelevant regarding DUI.

The Legislature adopted the decades-old comprehensive DUI law to protect public safety, so a provision on prohibited substances and their resulting chemical compounds should be interpreted broadly to include inactive compounds as well as active ones, the Court of Appeals said.… more

Supreme Court?

according to a story in the 3/31/2013 the case is being appealed to the Arizona Supreme Court. My prediction is they will decline to hear the case. To the extent this needs fixing, the legislature needs to step up and fix it…. BUT WAIT…

Wrong again; the Supreme Court did hear the case, in early November 2013. Some of the reported questioning indicates at least some of the justices are skeptical of the state’s argument: “…drew questions from Chief Justice Rebecca Berch who wondered how far that logic can be stretched. She asked Luder whether her argument falls apart if it turns out that Carboxy-THC can be measured a year from someone smoking the drug — or even five years”

No word as yet on when to expect a ruling.

Around the Nation

There was a WSJ news story Blurry Line on Pot-DUI Cases that gave a rundown on what some other states are up to; Colorado, Washington, and Montana were mentioned. There is some legislation zeroing in on a limit of 5 nanograms/liter of THC. In one state it amounts to a per se limit, in a couple of others it more like a rebuttable presumption. Curiously, the story didn’t mention Arizona at all which seems to be an oversight on the part of the reporter.

Here’s an older (1993) study from NHTSA Marijuana and Acutal Driving Performance DOT-HS-808-078.pdf

CoA Strikes down local public drunkenness laws

For no particular reason, I am putting this interesting but not relevent to DUI tidbit here. On 5/6/2014 Arizona CoA Div 1 struck down the city of Scottsdale ordinance about being drunk in public.  Arizona v. Coles,  No. 1 CA-CR 13-0250.  

From the Arizona Republic:

…The opinion stated that Scottsdale’s public-intoxication ordinance is pre-empted by a 1972 state law that [36-2031, who knew?]  prohibits local laws from criminalizing “being a common drunkard or being found in an intoxicated condition.”

The court maintained that it was clearly the state’s intent at the time to treat alcoholism as a disease rather than criminal behavior, unless a person under the influence was also engaging in activities, such as driving…

Some interesting boilerplate may be useful for local ordinance issues (operation of bicycles, sidewalk usage, etc?). Writing in Coles:

A state statute preempts a local ordinance when (1) the municipality creates a law in conflict with the state law, (2) the state law is of statewide concern, and (3) the state legislature intended to appropriate the field through a clear preemption policy. … Whether a state law preempts a city ordinance is subject to de novo review as a question of law…


4 thoughts on “Arizona court ruling upholds DUI test for marijuana”

  1. Montini did a column on the ruling. he is unsymmpathic to the idea that case law must remain consistent. The lawyer hints/implies it will go to AZ Supreme court(?) that should be interesting — though the law seems to me to be airtight. The issue is with the legislature and the statute, not with the judiciary.

    Not high but still DUI
    By Ed Montini, The Republic, Mar 3, 2013

    What if you could get a DUI in Arizona for having had a few drinks two weeks ago?

    Crazy, right?

    Except it’s happening. Not with alcohol, but with marijuana.

    Arizona drivers are going to jail, paying big fines and losing their licenses after having gotten DUI citations when blood tests prove they were not high.

    “It makes no sense,” said attorney Michael Alarid III, who is representing a man charged under current law. “But this is how prosecutors and the courts are interpreting the law. And the Legislature doesn’t appear to want to change it. So we’re hoping we can get the issue before the state Supreme Court.”

    How could a person who is not high get busted for DUI?

    It happens when science meets politics.

  2. April 2013: HB2327 updated 13-3401 to put “bath salts”, and “spice” on the list of dangerous drugs. This updating is done on a regular basis as new versions of so-called designer drugs hit the market.

    13-3401 is a definitions bill; It contains numerous lists in its definitions, e.g. “dangerous drug”, “narcotic drug”, “opium”. It is unclear to me which list is invoked by dui 28-1381A3 “While there is any drug defined in section 13-3401 or its metabolite in the person’s body”.
    Which part of section 13-3401 !????

    I’m thinking the operative clue here is the word “drug”, so there are two lists of drugs; Dangerous Drug (defn #6), and Narcotic Drugs (defn #20); if that’s correct, my main confusion is the inclusion of anabolic steroids in the defn of dangerous drugs — how could it be illegal to drive with, e.g. Testosterone in one’s body (we’d all be in violation!)? Also a secondary confusion with this theory is that it would exclude the vapor-releasing substances (the word drug is not in that definition); which i would think would/could cause impairment and thus should logically be included somehow in 28-1381A3.?

    13-3401(6) “dangerous drug”, broken down into 5 subsections a through e
    13-3401(6)(a) hallucinogenic substances, listed individually i through xliii (i.e. 43 items)
    examples: LSD, mescaline
    13-3401(6)(b) cannabimimetric (cannabis mimicing; this is an entirely new and lengthy section) substances, i through vi (i.e. 6 items)
    examples: apparently this is where “spice” and “k2” fit in
    13-3401(6)(c) Central Nervous System stimulants, i through lix (i.e. 59 items)
    examples: Methamphetamine, amphetamine, Methylphenidate (Ritalin)
    13-3401(6)(d) Central Nervous System depressants, i through lxv (i.e. 65 items)
    examples: Zolpidem (ambien), Diazepam (valium), Lorazepam (ativan)
    13-3401(6)(e) anabolic steroids, i through xxiii (i.e. 23 items)
    examples: Testosterone

    13-3401(20) “Narcotic drugs” with items a through eeee (i.e. 79 items)
    examples: cannibis, coca leaves (includes cocaine, see defn), opium (see defn #21), Amidone (methadone), Fentanyl, Sufentanil

    13-3401(21) “Opium” with specific items a throgh hh
    examples Oxycodone (OxyContin), Hydrocodone (lortab, vicodin), Heroin, Codeine

    13-3401(22) “Ordinary ephedrine, pseudoephedrine…”
    I.e. common over-the-counter pseudoephedrine-based decongestant cold medicines; e.g. Sudafed

  3. From the Supreme Court opinion above STATE V. HARRIS (SHILGEVORKYAN); regarding the rules for statutory interpretation:
    “…although statutory title headings are not part of the law, they can aid in its interpretation, State v. Barnett, 142 Ariz. 592, 597, 691 P.2d 683, 688 (1984)”

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