In 2020 Arizona voters approved Proposition 207 which legalized marijuana use for those 21 years or older and decriminalized most uses by those under 21 years. Proposition 207 said no drivers can be guilty of the crime of DUI for having THC in their body, unless the THC is impairing the user.
Proposition 207 did not address the civil, non-criminal driver license consequences of driving with THC in the body. 28-1385 provides for a 90-day license suspension if a driver had in their body, “Any drug defined in section 13-3401 [which includes THC] or its metabolite in the person’s body except if the person possesses a valid prescription for the drug.” The Department of Transportation Motor Vehicle Division (MVD) has interpreted this law to mean no driver, even those with a Medical Marijuana Card (which is an authorization, not a prescription) can drive with any THC in their body. Under this interpretation a driver who has legally consumed THC cannot legally drive under any circumstances.
On October 1, 2024 the Arizona Court of Appeals held the MVD’s interpretation of Proposition 207 is wrong for two reasons. Frist, the Court said, the MVD’s interpretation limits the legal use of Marijuana. The Proposition says in what is now 36-2852(A) “notwithstanding any other law…, the State cannot “abrogate or limit any right or privilege conferred or protected by the laws of this state . . . .” A driver’s license is a privilege conferred by the State. Since a driver can legally use and drive with a non-impairing level of THC in them, to suspend a driver’s license for doing so would be a limitation of the legal use of THC in violation of Proposition 207. This reason applies to drivers who are legally using Marijuana. Any driver 21 years or older can legally use Marijuana but those under 21 years cannot legally use Marijuana. Most usages by those under 21 is not a crime but it is also not legal, and therefore this reason the Court of Appeals would apply to those under 21.
Second, the Court said the MVD’s interpretation also violates the Proposition in what is now 36-2853(B) which says a driver cannot be guilty of DUI Marijuana unless the driver is impaired to the slightest degree. The court said this shows an intent to not limit use for the non-impaired use of Marijuana and to suspend a license for that reason would also be a limitation on the legal use of Marijuana. In another case this year the Court of Appeals said this section, 36-2852(B) applies to all drivers including those under 21 and so this should mean impairment must also be proven for the license suspension of those under 21 years.
The Court of Appeals said the MVD can suspend a driver’s license for driving while impaired by THC.
An effect of this new Court of Appeals decision may be to turn MVD administrative hearings into trials. Prior to this decision all that was needed to uphold a 28-1385 DUI suspension is a valid test of a driver’s blood sample showing the presence of THC. Proving that a driver was impaired by THC is not as simple or straightforward as simply presenting the contents of a lab report showing THC, and it will take more evidence to show a driver was impaired by THC.
Gordon Thompson
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.
Website: https://www.GordonThompsonAttorney.net
Blog: https://www.GordonThompsonAttorney.net/blog/
