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Is the Grass Greener on the Other Side of Legalization?

If you’re registered to vote here in Arizona,* your November ballot will have a variety of propositions, from taxing high income earners to support public education to legalizing recreational marijuana.  Let’s talk about that latter one, Prop 207.  As a reminder, marijuana possession and use is currently only allowed subject to Arizona’s Medical Marijuana Act, which requires a doctor’s examination and certification to determine if a patient has a debilitating medical condition and thus qualifies to use medical marijuana.  All other possession and use?  Felonies in Arizona.  Oh, and another reminder: marijuana possession and use is still a violation of federal law.  We’ll worry about that later.

You’ve probably seen the signs on the streets corners, either the full color images of the Grand Canyon emblazoned with “vote yes on 207” or the mustard and black signs telling you to vote no, one of them foreboding more impaired drivers on the roads.  Given that we’re criminal defense attorneys, we have an interest in helping people understand their rights and what the laws actually allow and prohibit, so let’s get to it.

Prop 207, if passed, would allow persons 21 and over to legally purchase and possess up to one ounce of marijuana or up to 5 grams of marijuana concentrate.  An individual may grow up to six plants; a household may grow no more than 12.  Those selling marijuana are responsible for testing and properly labeling marijuana products.  Employers can still conduct testing and require drug and alcohol free workplaces.  Driving, boating, or flying while impaired to the slightest degree remains illegal.  Marijuana use must be restricted to private areas—no smoking or taking edibles in public, including on sidewalks, in parks, in cars parked in publicly accessible parking lots, etc.  No one is permitted to provide marijuana to a person under 21.  Persons who were previously convicted of certain marijuana offense may apply to have their convictions expunged or erased.

If you take a step back, you’ll note that these proposed laws actually look quite a lot—although not identical to—our laws relating to alcohol.  When we start looking at things like DUIs, though, we have had decades of research on alcohol and its effects on the human body but very little on marijuana.  We’ve discussed this in past blogs, but the basic reason for this goes back to marijuana being illegal at the federal level, meaning that universities receiving money from the federal government cannot engage in research that also violates federal laws.  But we do know a few things, including that the body reacts to, metabolizes, and stores marijuana very differently from alcohol.  With alcohol, you ingest your drink, and the alcohol goes into your bloodstream, which travels to your central nervous system, causing the impairing effects.  From the point that the alcohol has fully absorbed into your bloodstream, your body, primarily your liver, gets to work on metabolizing and breaking down the alcohol to eliminate it from your body at a constant rate.  This process works in a very predictable way and is largely determined by your gender and your weight.  Based on decades of research, the scientific community has determined that all persons, regardless of their tolerance (your body’s familiarity to a drug), are impaired for the task of driving a car at a .08 or greater.  Of course, people can be impaired at a lesser blood alcohol concentration, but that’s why Arizona’s laws have multiple ways to charge a DUI.

Marijuana is different, and the ways that you can use marijuana are different.  It can be smoked, where the primary psychoactive component, THC, travels very quickly into your lungs and bloodstream, then binds to receptors in the body to cause the “high” impairing effect within minutes.  Alternatively, someone can ingest an edible containing extracted THC, but a person will not feel the high until a relatively much longer time after—perhaps 30 minutes or an hour.  While the impairing effects of smoked marijuana last 1 to 3 hours, it is not unusual for the high from an edible to last between 6 and 8 hours, often the length of time that many people sleep at night!  THC is also stored in the body’s fat cells, and the more that is introduced to the body, the more that is stored, explaining why people who have not used marijuana for days or even weeks can still test positive for THC all that time later.  Furthermore, THC has a long half-life; for infrequent users, its metabolites can be present up to 1.3 days, and regular users for 5-13 days.  So the presence of THC in the bloodstream, by itself, cannot necessarily correlate to recent use or demonstrate impairment at the time of driving.  Further, unlike alcohol, there has been no scientific, peer reviewed study that indicates that all persons will be impaired to drive at a particular level of THC in the blood.  Regular users also demonstrate considerable tolerance to THC, meaning that they must use increasing doses to achieve the same psychoactive effects.  So although Colorado and other states have set the 5 ng/mL blood limit, there is no consensus within the scientific community that this impairs all users, regardless of their familiarity with marijuana.

So where does that leave everything?  For one, if recreational marijuana is legalized, the State will lose one route of charging someone with marijuana DUI.  Prosecutors would no longer be able to say that a driver 21 or over having any measurable amount of active THC in his or her system at the time of driving has violated the law regardless of whether he or she is impaired to the slightest degree by it.  Again, this would bring the DUI laws for marijuana more in line with what they are for alcohol.  On the other hand, the State would have to establish a blood limit for marijuana and/or require law enforcement to gather sufficient evidence to show that the driver was impaired by marijuana, and we don’t see anything in Prop 207 that provides that limit.  As it stands, the State would be limited to charging drivers who had used marijuana with DUI while impaired to the slightest degree, and that ought to mean there would have to be evidence of impairment (although what signs and symptoms are consistent with impairment from marijuana is a discussion for another day). 

At the end of the day, this measure is on the ballot for you, the citizens and voters in Arizona, to decide what is best.  Enough legal blather from us.  Go exercise your rights and vote!

*Wait, you’re not registered? You have until today, October 23, so click here!