Marijuana users must be impaired to face Az DUI penalties, court rules

The state can’t suspend someone’s
driver’s license because they have THC in their bloodstream unless they
are actually impaired while behind the wheel, the Arizona Court of
Appeals ruled, upholding a provision in a marijuana legalization law
that voters passed in 2020.

Aaron Kirsten was pulled over for
speeding in Sedona in October 2022, and the police officer saw that he
had bloodshot eyes, slurred speech and was unsteady on his feet. Kirsten
refused a field sobriety test, but when he did a breathalyzer test, he
blew a 0.083, slightly above the legal limit, and he was arrested.

While in custody, Kirsten consented
to a blood draw, but the Department of Public Safety’s analysis showed
his blood alcohol content was just 0.063, less than the 0.08 maximum BAC
allowed under state law.

But DPS also tested Kirsten’s blood
for drugs and found he had tetrahydrocannabinol metabolites. As a
result, the Arizona Department of Transportation suspended his license
for 90 days, citing a state law that bars driving if THC metabolites are
present.

At an administrative appeal, Kirsten
testified that he hadn’t consumed THC in the 24 hours prior to his
arrest, and any effects from the THC he had consumed had long ago
passed. A family member who is a nurse and chiropractor also testified
on Kirsten’s behalf, telling the administrative law judge that THC
metabolites — the compounds that form as the body breaks down a
substance — can stay in the blood for weeks after consumption.

But the administrative law judge said
it was “irrelevant” whether Kirsten had smoked marijuana within 24
hours of his arrest and sided with ADOT, ruling that the agency didn’t
need to prove he was impaired by THC to suspend his license for using it
previously.

Kirsten appealed the ruling to the Maricopa County Superior Court, which upheld the administrative judge’s reasoning. 

But the appellate court said
both got it wrong and effectively ignored voter-created laws that bars
the state from punishing drivers who have legally used marijuana
products but are not impaired while driving.

The first law says that the state
cannot limit “any right or privilege conferred or protected by the laws
of this state” for legal use of marijuana. Driving, the appellate court
noted, is a privilege under Arizona law, and thus Kirsten’s driving
privileges are among the things that cannot be limited merely because he
had THC metabolites in his blood.

And Proposition 207 spelled out that
the state was allowed to penalize people for driving “while impaired to
even the slightest degree” by marijuana, something that wasn’t the case
for Kirsten.

Taken together, those two laws
approved by voters mean a driver can only be guilty of violating an
earlier state law that bans driving with THC metabolites in the blood —
even if they’re inactive metabolites and the person is not intoxicated —
if he or she is “also impaired to the slightest degree.”

“This reinforces our understanding of
the voters’ intent, expressed through their enactment of Proposition
207, that unimpaired driving after consuming marijuana cannot be
penalized,” the unanimous three-judge panel wrote.

Kirsten also scored another victory
in the case, as the appeals court rejected the state’s attempt to uphold
the license suspension because he was impaired by alcohol. The state’s
attorneys focused their case on the argument that impairment wasn’t
required to justify a license suspension and not the officer’s testimony
that Kirsten was actually impaired. 

“The State waived that position by choosing not to pursue it,” Judge Andrew Jacobs wrote in the ruling.