Representative John Kavanagh has introduced 2021 House Bill HB1084 which would establish a DUI Per Se limit of 2ng/ml. of THC in a driver’s body. What this means is that if the bill becomes law, a driver would be guilty of DUI if they had 2 ng/ml/ of active THC in their body within 2 hours of driving or being in actual physical control of a motor vehicle, even if they are not impaired to the slightest degree. It is similar in concept to the current DUI law, 28 A.R.S. § 1381.A.2, which makes a driver guilty if they have an alcohol level of .08% or more in their body within 2 hours of driving or being in actual physical control of a motor vehicle.
Bill HB1084 as currently written, in all likelihood violates both the Arizona Medical Marijuana Act, 36 A.R.S.§ 2801 & following and 2020 Proposition 207 which is codified as, The Smart and Safe Arizona Act, 36 A.R.S. § 2850 & following.
Article 4, Part 1, §1(14) of the Arizona Constitution generally prohibits the Legislature from passing laws which violate the terms of a voter approved Initiative. The Medical Marijuana Act and The Smart and Safe Arizona Act (2020 Proposition 207) were voter approved Initiatives and therefore the Legislature is prohibited from passing laws which violate those Acts.
36 A.R.S. § 2811(B)(1) says a medical marijuana cardholder cannot suffer a criminal or civil penalty for the lawful use of marijuana. Lawful use of marijuana means driving as long as the THC from the marijuana does not impair the driver to the slightest degree. For a cardholder/driver this means they cannot be found guilty of DUI if the active THC did not cause impairment for that particular cardholder/driver regardless of the level of THC. In short, under the Medical Marijuana Act a cardholder/driver cannot be found guilty unless that particular cardholder/ driver is impaired, regardless of the level of THC. HB1084, by establishing a 2 ng. /ml. limit, would violate the Medical Marijuana Act because the cardholder/driver would be guilty solely because they are over a certain limit, even though they might not impaired. Any Per Se statute would violate the Medical Marijuana Act.
Section 7.1 of The Smart and Safe Arizona Act (2020 Proposition 207) authorizes the Legislature to pass a Per Se law based on the concentration of THC in a person’s body, “when scientific research on the subject is conclusive and the National Highway Traffic Safety Administration [NHTSA] recommends the adoption of such a law.” What this means is the Legislature cannot pass a Per Se statute unless the scientific evidence is conclusive that at a given level all persons are impaired and the NHTSA recommends the adoption of such a law.
Currently scientific research has not established conclusively that at any particular level of THC all persons are impaired, let alone a level as low as 2 ng. /ml. Without conclusive evidence and a recommendation from NHTSA to pass such a law, any Per Se statute would violate The Smart and Safe Arizona Act as well.
This will be an important issue for the Legislature this year. You can monitor the progress of the HB1084 as it goes through the legislative proceedings.
For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.