Despite dire warnings by opponents of Proposition 205, marijuana users could still be prosecuted for driving under the influence if voters legalize recreational marijuana use in November.
Supporters of Arizonans for Responsible Drug Policy, the campaign against marijuana legalization, have made broad claims about how marijuana DUIs would be nearly impossible to prosecute if voters approve Prop. 205, which would license and regulate the sale of marijuana to adults 21-and-older. Maricopa County Attorney Bill Montgomery has said the ballot measure gives marijuana-impaired drivers “immunity” from the law.
Not so, according to public defenders, who accuse Montgomery of “scare-mongering.”
“He’s very wrong,” said David Euchner, a public defender in Pima County. “He’s right, if all he wants to say is, ‘It’s going to be harder for us (to prosecute).”
Non-impaired drivers are being prosecuted for DUIs under the current law, Euchner said, on “per se” DUI charges – an administrative charge that takes effect when a driver is found with active marijuana metabolites in their blood. Active metabolites can last in the bloodstream for up to two days, long after impairment has subsided.
Put another way, “if you have a joint today, you’re not high two days later,” Euchner said, despite active metabolites still being in your system.
The distinction is an important one for the Campaign to Regulate Marijuana Like Alcohol. It is working to convince voters to approve Prop. 205 so that Arizona can regulate the recreational use of marijuana, and in doing so decriminalize the possession and consumption of marijuana. But the anti-marijuana campaign routinely cites travel safety concerns as one reason to vote no, including that marijuana users will be allowed to drive high under the law, even though Prop. 205 includes language stating that while marijuana would be legalized for recreational use, it is still illegal to use marijuana and operate a motor vehicle.
The argument against legalization
Montgomery, who actively opposes marijuana legalization, points to other language in the initiative he says would tie his hands when prosecuting drivers who are impaired by marijuana.
Prop. 205 states a person can’t be penalized “for an action taken while under the influence of marijuana or a marijuana product solely because of the presence of metabolite or components of marijuana in the person’s body or in the urine, blood, saliva, hair or other tissue or fluid of the person’s body.” Montgomery said the language amounts to barring prosecutors from introducing vital evidence of impairment at trial.
The effect of that clause, Montgomery argued, is that: “I can’t use someone’s blood to prove that there are active metabolites, which the Arizona Supreme Court ruled two years ago that that’s what we have to use” when prosecuting someone for a marijuana-related DUI.
Montgomery is referring to a 2014 Supreme Court decision in State of Arizona v. Shilgevorkyan that found prosecutors can’t prosecute cases of marijuana impairment because of the presence of any metabolite. Instead, the case must rest on the presence of Hydroxy-THC, an active marijuana metabolite that only stays in a marijuana user’s system for a day or two. There are other metabolites from marijuana, including the one that led to the DUI charge in Shilgevorkyan, that are inactive and do not impair a person. Some of those metabolites stay in a person’s body for several weeks after marijuana use.
Given the seemingly contradictory language of the initiative, Montgomery insisted that the courts would give more weight to the part of statute he claims prohibits prosecution.
“You have to read the two statutes together, and the more restrictive statute is going to control,” he said. “So, they can say at several places within this initiative that you’re not allowed to drive impaired by marijuana… How do I prove that when you’re telling me that no action can be imposed?”
Montgomery also suggested that an impaired driver could dodge conviction simply by refusing to comply with the test.
“If you don’t say anything to law enforcement, if you don’t participate in a field sobriety test, if you don’t cooperate with a drug recognition expert, what evidence of impairment do I have? I can’t go into court and just say you were weaving in your lane,” Montgomery said.
But Arizona laws of implied consent would penalize a driver who refuses to consent to drug tests authorized by a search warrant. Refusing to undergo testing results in a one-year suspension of driving privileges.
A spokeswoman for Montgomery acknowledged via email that Prop. 205 changes nothing about implied consent, but argued that it does effectively eliminate 90-day suspensions under administrative per se DUI charges. Since the charge relies on metabolites in the bloodstream, and the initiative states Arizonans can’t be punished “solely” for metabolites in their blood, the charge is null, she wrote.
The case for legalization
Euchner said Montgomery couldn’t be “wronger” in his assessment of the initiative.
The Supreme Court has ruled that testing positive for active marijuana metabolites does not automatically mean a driver is under the influence. The court’s ruling in Dobson v. McClennen allows medical marijuana cardholders to make an affirmative defense that, despite the presence of an active marijuana metabolite in their system, they weren’t impaired.
Prop. 205 would give all Arizonans, not just medical marijuana cardholders, the right to an affirmative defense, Euchner said. As for prosecutors like Montgomery, they’ll still be able to make a case for impairment – it just won’t be as black and white as the current per se DUI statute allows.
“Of course it’s going to make it harder for him to get a conviction. It was too easy before,” Euchner said. “But that’s the rub. Just because the marijuana blood evidence isn’t enough to get a per se conviction doesn’t mean it’s not admissible in court as evidence that can be used to prove impairment.”
A part of why it’ll be more difficult to prosecute lies in the differences between what’s scientifically understood about alcohol versus marijuana. Sarah Mayhew, another public defender in Pima County, noted that Arizona’s DUI laws are written primarily for alcohol-related violations, which include scientific presumptions that a driver is impaired if his or her blood-alcohol content is 0.08 percent or higher.
Mayhew acknowledged that, unlike alcohol, there isn’t a common standard for marijuana impairment like there is for alcohol: “It just hasn’t been established yet,” Mayhew said, though she added “it will be established quickly” as more states legalize marijuana.
Ryan Hurley, an attorney who helped draft Prop. 205, said once scientists arrive at a consensus for what the limit of marijuana in a driver’s system should be, it’ll be up to the Legislature to adopt such a law. Arizona’s voter protection law would require a three-fourths majority vote to tweak the law, but Hurley said legislative consensus on cracking down on impaired driving isn’t out of the question.
Until then, prosecutors will just have to do their job and prove impairment, and blood samples will still be a part of their case, along with other signs of impairment, Hurley said.
As for the continued claims from marijuana opponents that Prop. 205 spells the end of DUI convictions, “apparently they have no compunction lying to the public to advance their issues,” Hurley said.
Editor’s note: A previous version of this story misidentified the name of the main group opposing marijuana legalization.