As Arizonans ready themselves for the November election, a lot of attention is being paid to one of the items on the ballot. Proposition 205, known as the “Regulation and Taxation of Marijuana Act,” consisting of 19 pages of explanations and regulatory and other items, will be voted on this fall. The essential component of Prop 205 is that it would legalize possession and use of marijuana in small quantities. Under the proposal, smoking pot in public, underage use of marijuana in any amount, unauthorized production of marijuana, and possession of more than one ounce (or six plants) could still lead to a fine of up to $300 and community service, and perhaps more, depending upon the amount of pot possessed.
Metabolites and Impairment
A question in the news even before Prop 205 was formally on the ballot concerns how marijuana use should be treated in the context of driving under the influence. The statute, as adopted, read that the mere presence of a metabolite of marijuana made driving illegal under the DUI law. But the Arizona Supreme Court has ruled that, at least in the case of Medical Marijuana users, having a metabolite in your system while driving does not necessarily mean that you will be convicted of DUI. You can raise as an affirmative defense the fact that the concentration of the metabolite was not sufficient to cause you to be impaired.
The language in the initiative changes things somewhat. First, however, it states that driving under the influence of marijuana remains illegal. It goes on to provide, however, that you may not be penalized for driving under the influence solely because of the presence of a metabolite of marijuana in your system.
Well, some folks, including Maricopa County Attorney Bill Montgomery, are unhappy about the proposal. Montgomery likens it to a situation where burglary is illegal, but the cops can’t use fingerprints to prove a case. Well, we think the analogy just isn’t there. No one says the presence of a marijuana metabolite can’t be used in a DUI case. All that Prop 205 says is that you need more evidence of impairment in order to prove your case. Any this, effectively, is what the Arizona Supreme Court said when refused to follow the plain language of the statute, reasoning that it would be ludicrous to convict someone of DUI in the absence of any evidence of impairment.
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