A few Republican lawmakers are trying to sneak past the Voter Protection Act with a draconian DUI bill that targets the state's medical-marijuana users.
State Representative Sonny Borrelli is the prime sponsor of HB 2273, a bill that could result in DUI convictions for medical-cannabis users who aren't impaired while driving.
Borrelli's bill would reverse an Arizona Supreme Court ruling in April 2014 that prohibits DUI convictions based solely on the presence in the bloodstream of a marijuana compound known to be incapable of causing impairment.
As New Times has reported in several articles on the subject, marijuana in the bloodstream breaks down to various molecules including the inert "11-nor-9-Carboxy-THC," known as carboxy THC. The inactive metabolite can stay in the body for weeks after a person's last use of marijuana.
Arizona passed a zero-tolerance law in 1990 that made it a crime to drive with any trace of marijuana in the system, including carboxy THC. But in 2010, voters approved the Arizona Medical Marijuana Act, which prohibits driving under the influence of marijuana but also stipulates that qualified medical users can't be prosecuted for a DUI "solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment."
Borrelli's bill amends state DUI statutes by prohibiting specifically any "active or inactive metabolites" in the suspected impaired driver's bloodstream. It also allows a possible exception to driver's license suspension in conviction of any motorist with a "valid prescription" for any drug. But it contains no exceptions for valid, state-authorized medical-marijuana users.
We asked Borrelli to comment about his bill. He declined to answer our questions. But in an e-mail to New Times about the reasoning behind the bill, he referred directly to the Arizona Supreme Court case of Hrach Shilgevorkyan, which eliminated prosecution for inactive metabolites of marijuana.
(Don't confuse the April ruling with a ruling in October by the Arizona Court of Appeals, which upheld Arizona's zero-tolerance law for active metabolites of marijuana. The most recent ruling means medical-pot users still can receive a "sober" DUI because the main active cannabis metabolite may stay in the system for days after the last toke; the April ruling dealt only with the inert metabolite.)
Shilgevorkyan, as the facts of the case showed, was cited for DUI after he was stopped for speeding. He failed a field test, and a blood test showed the presence of carboxy THC in his system.
As Borrelli notes in his brief e-mail to New Times, the state Supreme Court was "preempting legislative intent" when the judges wrote: "We do not believe that the legislature contemplated penalizing the presence of a metabolite that is not impairing."
Quoting the court ruling, Borrelli admits in his e-mail that "because carboxy THC can remain in the body up to 30 days...a medical user could be charged up to a month after legal ingestion."
Yet Borrelli was too busy to talk to us about his bill before our deadline so we're not sure on what basis he's claiming the bill won't be subject to the 1998 Voter Protection Act, which requires a three-quarters majority in the Legislature to change a voter-approved law. Even then, the change must further the goal of the law.
Ryan Hurley, a local lawyer who helps medical-marijuana businesses, tells New Times that Borrelli's bill, as it's written now, runs afoul of the Voter Protection Act because it's in "clear and direct contravention" of the successful 2010 ballot initiative. Unless lawmakers include the same exemption for valid medical-marijuana users granted to valid users of prescription drugs, the marijuana industry will oppose the bill "for sure," Hurley says.
"I think it's a direct response to the Supreme Court case that they didn't like," Hurley says, adding that some lawmakers still don't view cannabis as potential medicine.
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One of the bill's six GOP co-sponsors, Representative Regina Cobb, R-Kingman, says she likes Borrelli's bill because no one knows just how long it takes for a marijuana user to drive safely after last consuming the drug. Prescription drugs, on the other hand, are better-regulated and will contain instructions on how many hours the user should wait before driving.
If the cannabis-using community believes the law should contain an exception for registered medical-marijuana users, they should talk to Borrelli, she says.
We asked Cobb why it was logical to carve out an exemption for prescription holders in the DUI law, but not card-holding marijuana users. Cobb says she would lobby to take out the prescription-drug exemption.
While the latter move, if Cobb actually acts on it, would make the law more consistent, it still would have a common-sense problem when it comes to inactive metabolites that don't impair drivers.