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Prove You’re Not Impaired

The best thing I can say about the recent Supreme Court of Arizona opinion in Dobson v. McClennen is that it is far better than the terrible Court of Appeals opinion it vacates. The heart of the issue in the case is the Mesa City Prosecutor’s Office’s despicable desire to convict medical marijuana patients of driving under the influence when they are not under the influence. The Court of Appeals of Arizona condoned the practice. Although the Supreme Court of Arizona disagreed, it placed the burden on patients to prove their lack of impairment.

It is actually a pretty simple issue if you do not have something against medical marijuana and a serious creative streak when it comes to statutory interpretation, as A.R.S. § 36-2802(D) provides that a medical marijuana patient “shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.” Mesa ignored that provision altogether, in essence deleting it from the code by arguing and eventually convincing the Court of Appeals of Arizona that people taking their legislatively-recognized medicine should be able to defend themselves against one of the DUI charges that will necessarily result from them taking their medicine and being stopped and arrested for DUI, the one in subsection (A)(1) of A.R.S. § 28-1381 saying they cannot drive while impaired, but not the other, the one in subsection (A)(3) of the same statute saying they cannot have their medicine or its metabolite in their blood.

The Supreme Court, thankfully, realized that the statutory language “would be unnecessary if it only prohibited prosecution under statutes, such as [subsection (A)(1)], that require the state to prove that the defendant is in fact impaired as a result of the presence of marijuana or its metabolite.” What did not seem to persuade the court was the fact that the law elsewhere provides as follows:

A registered qualifying patient . . . is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege, including any civil penalty or disciplinary action by a court or occupational or professional licensing board or bureau . . . [f]or the registered qualifying patient’s medical use of marijuana pursuant to this chapter, if the registered qualifying patient does not possess more than the allowable amount of marijuana.

The court acknowledged prior to citing that provision that it “broadly immunizes registered qualifying patients for their medical use of marijuana.” However, plain language notwithstanding, the court decided registered qualifying patients should be subject to arrest, prosecution, and penalty for using their medicine if they are impaired and in actual control of a vehicle. Considering that most officers stopping people for DUI never seem to meet anyone they do not believe to be impaired, that reading too renders the medical marijuana laws meaningless. Worse yet, the Supreme Court places the burden of proof regarding impairment on the defendant.

Its conclusion almost seems sort of right if you plug your ears, squint, turn your head to the side, and secretly harbor great disdain for anyone consuming the devil’s lettuce, even for medicinal purposes:

When read together, the statutory provisions suggest that the [medical marijuana act] gives qualifying patients a limited defense rather than a general immunity in (A)(3) prosecutions.

The court attempted to address the obvious problem with its position:

Petitioners contend that it is inappropriate to assign to qualifying patients the burden of showing that they did not have marijuana concentrations sufficient to cause impairment because there is no commonly accepted threshold for identifying such concentrations. This contention, however, argues in favor of assigning the burden to patients to prove, by a preponderance, that the marijuana concentration in their bodies while they were driving was not sufficient to cause impairment. The risk of uncertainty in this regard should fall on the patients, who generally know or should know if they are impaired and can control when they drive, rather than on the members of the public whom they encounter on our streets.

There are three simple maxims I find helpful in understanding Arizona’s general approach to DUI: 1) impaired drivers are scary; 2) lots of people in general and most people with a robe believe that punishing people for things that are arguably or at least tangentially related to driving while impaired will make a difference; and 3) in light of the two previous maxims, the government’s constitutional burden of proof and the actual text of the laws should not bar the state from ruining the lives of people who pose no real threat whatsoever. The Supreme Court’s opinion makes a lot more sense if you keep those in mind.

What the opinion will do is guarantee a battle of experts in marijuana DUI cases. The state’s “experts” will, of course, continue to say whatever it is they need to say to convict. Police all over the state will continue to make up every unverifiable thing they can about every DUI defendant’s supposed impairment. Real experts will charge substantial sums, ones that courts and indigent defense offices and individual defendants will no doubt be unable or loathe to spend, to explain the truth to juries about the difficulty or impossibility of saying based on blood results whether someone was in fact impaired. Non-impaired medical marijuana patients will continue to plead or be convicted at trial en masse.

Dobson may seem like a victory for medical marijuana patients, but it is really just a superficially fair way of making sure things keep plodding along just as unfairly with marijuana DUIs as they do with every other sort of DUI.

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3 Responses to "Prove You’re Not Impaired"

  1. Rodrigo Andrade Jr says:

    I agree with your point on victim crimes. If the State dedicated 1/4 of the resources that are dedicated to DUI enforcement, crimes would have a higher probability of being resolved and to some extent providing individual victims or their loved ones some type of closure. In addition, the extra funds to other crimes could improve the system to less innocent individuals being charged and convicted to only later be cleared with DNA evidence. However, the State is more concerned with collecting DUI fees from impaired individuals and fronting being ‘tough’ on crime that is why crime labs in municipalities like Phoenix can purchase roughly a 400K instrument to measure and confirm many substances in a sample; presumable for all types of offenses. If this type of effort was channeled to seriously violent offenses from: serious domestic violence to other types of acts, society as a whole would be better off.

  2. Rodrigo Andrade Jr says:

    Matt, this decision seems to grant an affirmative defense similar to the one that RX drug cases attained as a result of Fannin(RPI), so it seems to still comply with what exists in Arizona case law by placing MMA individuals on level playing field with RX DUIs. Fannin also placed the burden on the person with the RX to establish by a preponderance of the evidence that they were using it as prescribed. Would it be more comforting if MMA users and RX users that are entitled to use these substances would be prosecuted just under the A1 statute? Even if that would be the more proper option, it still leads to a battle of the experts, which is interesting because the most relied upon defense expert in Arizona for DUI, Chester Flaxmayer, will generally testify that people impaired by MJ will not seem as impaired because they become aware that they are impaired and focus more at the task at hand which leads to less outward symptoms of impairment. Huh? Back to the case at hand, perhaps the better holding would have been MMA individuals can only be prosecuted under A1 and it would have saved us all from their horrid logic, but again A3 includes MJ under ARS13-3401. Looks like a clean up job for the legislature.

    1. Matt Brown says:

      Agreed. And (a)(1) might be a better option, but it still bothers me. I’d rather we do away with the DUI laws altogether and focus more on figuring a way to stop sober and impaired people alike from doing the already illegal shit that endangers everyone else and makes us as a society scared of impaired drivers in the first place.

      If there’s an actual victim who has suffered an actual loss, I’m all about using the justice system. If it’s another cracked windshield, poor performance on bullshit tests, and debatable chemical test results with a debatable relation to impairment, I’d rather save the cops some time they could devote to solving real crimes.

      In Arizona, we still solve less than half of pretty much every crime with an actual victim except for murder and aggravated assault, and less than a quarter of crimes with actual victims overall. I can’t help but notice that homicide DNA samples take outrageous amounts of time to get tested, while labs statewide seem terrifyingly efficient at pushing DUI tests through.

      Our fucked up priorities and the horribly dangerous shit I see every time I drive anywhere here worry me way more than some AMMA patients crossing one marked line once driving with a buzz.

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