In 2020 Arizona Voters approved Proposition 207 which legalized Marijuana use for adults and in most situations decriminalized use by those under 21 years.
There are two ways someone can be guilty of misdemeanor DUI with drugs. First, under A.R.S. 28-1381.A.1, by being impaired to the slightest degree. Second, under 28-1381.A.3 by having within their body a controlled substance without legal authorization to do so. Under Federal law Marijuana remains a controlled substance. Since marijuana was now legal for adults and in most situations not criminal for those under 21, Proposition 207 changed 28-1381.A.3 by saying in the prosecution of any person the State had to prove the person was impaired to the slightest degree. This was required because it made little sense to say people could still be guilty of having a controlled substance in the body, when it was not criminal to have the substance in the body. It further makes no sense to have a separate 28-1381.A.3, marijuana in the body charge when what the State has to prove, impairment to the slightest degree, was the same for both that charge and the 28-1381.A.1 Impairment Charge.
Some prosecutors argued that because the Proposition did not fully legalize marijuana use by those under 21 the change to 28-1381.A.3 requiring proof of impairment did not apply to them, and so someone under the age of 21 was automatically guilty of DUI for simply having marijuana in their body, even if they are not impaired. The prosecutors argued the word “person”, a term defined in the Arizona criminal statute A.R.S. 13-105 as a human being, in the updated version of 28-1381.A.3 did not mean person, but really meant “person 21 years or older”.
On April 16, 2024, the Arizona Court of Appeals rejected this argument in my case State v. Boisvert, and said the word “person” in 28-1381.A.3, means “person” and not “person under the age of 21.” Since the word “person” includes all persons, it means for all persons, and the State must prove a person of any age is impaired to the slightest degree in order to be guilty of DUI.
This result is especially important because of what it avoids. If the court had agreed with the State and said “person” means “person 21 years or other” it would have produced an absurd result. For example, an 18-year-old girl and her 21-year-old brother are separately driving the wrong way on a highway with a detectable but non-impairing level of THC in their body. The 21-year-old boy would be not guilty because he was not impaired to the slightest degree. The 18-year-old girl, who is also not impaired but has THC in her body, since she is not a “person” for whom the State must prove impairment is guilty of 28-1381.A.3 and through it 28-1385.A.5, felony Aggravated DUI, and must serve 4 months in State Prison. The only difference in the above example is the person’s age, with the 21-year-old boy not guilty of DUI when his 18-year-old sister, who did the same thing as her brother, namely, driving the wrong way on a highway with a detectible by non-impairing level of THC, must suffer a felony criminal conviction and go to State Prison. This would be an absurd result where a non-impaired 18 year old goes to prison whereas a non-impaired 21 year old is not guilty of DUI, however, it is important to note this result is what the prosecutors were trying to get the court of appeals to say is the law.
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/
