Can I get a 90-day DUI license suspension if I have THC in my blood but I am not impaired? According to a recent Court of Appeals decision the answer is No in Arizona.
Some states, such as Washington, have set per se limits (5 nanograms) on the amount THC (the active ingredient of Marijuana) in blood. These limits mean someone is guilty of DUI or can have their license suspended if they are driving and have at least 5 nanograms of THC in their blood, even if they are not impaired. This is not currently possible in Arizona.
In 2020 the Arizona voters approved Proposition 207 which changed the laws for Marijuana use. Prop 207 legalized the use of marijuana for people 21+ and decriminalized use in most instances for under 21 years. Prop 207 also said the State cannot impose penalties for the lawful use of marijuana.
For Marijuana DUIs Prop 207 made two important changes.
- A person can only be found guilty of the crime of Marijuana DUI if the driver is impaired to the slightest degree by the THC in their body. This was a major change in the law because before Prop 207 a driver who had THC in their body was automatically guilty, unless the driver was not impaired and using Marijuana pursuant to a Medical Marijuana Card authorization.
- Prop 207 said the State may not set a per se limit (such as 5 nanograms) unless and until the scientific evidence is conclusive (that all persons are impaired at that level) and National Highway Traffic Safety Administration (NHTSA) recommends that particular limit (like .08% alcohol). (Prop 207, section 7.1, p. 16) To date the scientific evidence does not support any particular limit. (2017 NHTSA Report to Congress & 2021 Yale Medical School Report).
Arizona has a non-criminal DUI procedure under 28-1385, by which a driver’s license can be suspended for 90 days. For drugs such as THC, a driver’s license must be suspended if the person has in their body, “Any drug defined in section 13-3401 or its metabolite is in the person’s body except if the person possesses a valid prescription for the drug.” Marijuana is a drug under 13-3401.19. No Arizona physician “prescribes” marijuana and an Arizona Medical Marijuana Card is an “authorization”, not a “prescription.” Therefore, anyone with THC in their blood is subject a 90-day suspension even though their use of marijuana may have been legal under Prop 207.
Prop 207 and 28-1385 are therefore in conflict. Prop 207 said there can be no penalties for the lawful use of Marijuana and 28-1385 imposes the penalty of a 90-day license suspension for the lawful use of Marijuana even with no impairment.
In the Kirsten decision the Arizona Court of Appeals resolved that conflict by saying there can be no 90-day suspension unless the THC in the driver was causing impairment. The court said Prop 207’s language is clear, no penalty without impairment and a license suspension is a penalty.
This case will change the procedure for the MVD’s Admin 28-1385 Per Se suspension hearings for Marijuana. In a suspension hearing for alcohol the evidence need only be test results showing .08% Alcohol, or the presence of any alcohol in a person under the age of 21 years, or .04% for a Commercial Driver License holder (CDL) driving commercially. In a case of a drug as defined in 13-3401 the lab report only has to show the presence of the drug. These tests and lab results are hard and fast objective evidence. In suspension hearings for Marijuana there are no limits by which objective lab results can show the person is above or below the limit. Because Prop 207 prohibits the setting of limits until the scientific evidence conclusively shows everyone is impaired at that limit, there will be no limits for now. Therefore, the evidence presented at the suspension hearings will have to be subjective. For example, does the presence of certain eye conditions mean someone is impaired by THC, and what scientific studies is that conclusion based on? In effect, 28-1385 Admin Per Se administrative hearings now will have to be mini-trials on the issue of impairment.
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/
