SUPERIOR COURT OF ARIZONA MARICOPA COUNTY LC DT 05/10/2012 COMMISSIONER MYRA HARRIS

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1 Michael K. Jeanes, Clerk of Court *** Filed *** 05/14/2012 8:00 AM COMMISSIONER MYRA HARRIS CLERK OF THE COURT K. Waldner Deputy STATE OF ARIZONA ANDREA L KEVER v. HRACH SHILGEVORKYAN (001) MICHAEL ALARID III ARCADIA BILTMORE JUSTICE COURT REMAND DESK-LCA-CCC Lower Court Case No. TR RECORD APPEAL RULING / REMAND Plaintiff Appellant State of Arizona (Plaintiff) appeals from the Arcadia Biltmore Justice Court s dismissal of the DUI charges against Defendant Hrach Shilgevorkyan. The State contends the trial court erred. For the reasons stated below, the court affirms the trial court s judgment. I. FACTUAL BACKGROUND. On December 11, 2010, Defendant was charged with two counts of driving while intoxicated by drugs or metabolites of illegal drugs, violations of A.R.S (A)(1) and (3). The underlying facts are not in dispute and the parties agree the police collected a blood sample at a 12:11 a.m. approximately an hour and a half after Defendant was stopped. Prior to trial, the State moved to dismiss the A.R.S (A)(1) charge and the trial court granted the motion. Defendant filed a Motion to Dismiss the A.R.S (A)(3) charge. The trial court held a hearing on the Motion to Dismiss on September 7, Defendant asserted the case should be dismissed because the statute referred to a drug or its metabolite and the term metabolite was used in the singular. Defendant contended the singular use of the word metabolite only allowed for prosecution if the Defendant had the primary metabolite, hydroxyl-thc in his system. Defendant asserted the nonpsychoactive metabolite of marijuana carboxy-thc was 1 After the trial court granted Defendant s request, the State filed a Motion to Reconsider as well as an appeal. The trial court held a hearing on the Motion to Reconsider on October 19, 2011 but determined the trial court no longer had jurisdiction over the case as the State had already filed its appeal in the action. Docket Code 512 Form L512 Page 1

2 not covered by the plain meaning of the statute. The State opposed this position and asserted the singular term metabolite referred to any metabolite of marijuana. Criminalist Brandon Nabozney testified at the September 7, 2011, hearing. 2 He explained the terminology used in marijuana cases and stated (1) THC is the main psychoactive ingredient in marijuana and (2) the chemical that acts on the brain. 3 He stated the body metabolizes THC and defined the term metabolite as a chemical compound that is produced during the process of metabolism. 4 Mr. Nabozney continued and explained there are two major metabolites of THC: (1) hydroxy-thc, which is an active metabolite, and (2) carboxy-thc, which is an inactive metabolite. 5 He testified that hydroxy-thc breaks down into carboxy-thc. 6 Mr. Nabozney stated he produced a report in this case indicating the presence of carboxy-thc. 7 Mr. Nabozney also explained the difference in the way hydroxy-thc acts as compared with carboxy-thc and said (1) the chemistry is different and (2) the way the chemicals act on the brain differs. 8 On cross-examination, Mr. Nabozney clarified and said THC and hydroxy-thc both act on the brain while carboxy-thc has no effect on the brain and by itself would not cause impairment. 9 Mr. Nabozney also confirmed that carboxy-thc can stay in a person s system for approximately one month after it was ingested. 10 Mr. Nabozney described the testing methodology and indicated that urinalysis can only test for carboxy-thc while blood testing is more sensitive and can be used to test for the presence of THC marijuana and hydroxy-thc, although hydroxy-thc does not remain active in the blood for a long time. 11 He confirmed the test showed Defendant had eight nanograms per milliliter of carboxy-thc in his blood 12 and stated the amounts reported may range between 2 and 100 nanograms for carboxy-thc. If there are higher levels, it is just reported as over 100 because 100 is the highest calibrator that he uses. 13 On redirect, Mr. Nabozney stated it is forensically accepted that both carboxy-thc and hydroxy-thc 14 are metabolites of THC. He described the metabolic process THC undergoes and said carboxy-thc begins within the first ten minutes of smoking. 15 He added the level of THC 2 Hearing transcript, September 7, 2011, p. 6, ll Mr. Nabozney was the only witness to testify. 3 Hearing transcript, id. at p. 8, ll Id. at p. 9, ll Id. at p. 9, ll Id. at p. 10, ll Id. at p. 14, ll Id. at p. 17, ll Id. at p. 19, ll Id. at p. 20, ll Id. at p. 21, ll. 2 25; and p. 22, ll Id. at p. 23, l Id. at p. 24, ll Id. at p. 31, pp Id. at p. 32, ll Docket Code 512 Form L512 Page 2

3 rises quickly and drops quickly and then levels off. In contrast, carboxy-thc rises over time and then drops down. 16 Mr. Nabozney also stated hydroxy-thc is quickly turned into carboxy- THC. 17 The State argued it had no case law indicating the wording of the statute was intended to be plural 18 but requested the Court construe the term metabolite to include its plural form. 19 In contrast, Defendant argued (1) the plain meaning of the statute and (2) the wording its metabolite refers to hydroxy-thc because of a linear progression whereby the metabolizing of THC results in hydroxy-thc. 20 Defendant then contended the legislative intent would be to govern just hydroxy-thc because this is an active metabolite that has an effect on the brain and can cause impairment a crucial element for a statute about driving under the influence of alcohol and drugs. 21 Defendant also asserted that sixteen states as well as Arizona have passed medical marijuana laws and it would be an absurd result to penalize a person for legitimately ingesting marijuana days or weeks earlier and then driving when there is no evidence the ingested marijuana was affecting the person s ability to drive. The trial court (1) ruled the singular form of metabolite was covered by the statutory language and (2) dismissed the case. The State appealed the trial court s statutory interpretation and asserted the trial court s ruling would if adopted statewide preclude all cases where the testing was by urinalysis as urine testing can only test for carboxy-thc. The trial court commented this was a case of first impression. The trial court held a second hearing on October 19, 2011, to consider the State s Motion To Reconsider. At that hearing, the trial court mentioned it would have reversed itself once it heard the appellate court cases that involved carboxy 22 but ruled it lost jurisdiction once the State appealed the case to the Superior Court. This Court has jurisdiction pursuant to ARIZONA CONSTITUTION Art. 6, 16, and A.R.S (A). II. ISSUE: DID THE TRIAL COURT ERR IN DISMISSING THE CASE. Although orders granting a Motion to Dismiss are reviewed based on an abuse of discretion standard, Dressler v. Morrison, 211 Ariz. 279, 281, 130 P.3d 978, 980 (2006), interpretations of statutes are reviewed de novo City of Tucson v. Rineer, 193 Ariz. 160, 182, 971 P.2d 207, 209 (Ct. App. 1998). Because the State s challenge is a dispute about the meaning of the term 16 Id. at p. 32, ll Id. at p. 33, ll Id. at p. 34, ll Id. at p. 35, ll Id. at p. 37, ll Id. at p. 37, ll Hearing transcript for October 19, 2011, at p. 10, ll Docket Code 512 Form L512 Page 3

4 metabolite in A.R.S (A)(3), this Court shall review the trial court s statutory interpretation de novo. The issue before this court and the trial court in an interpretation of A.R.S (A)(3) which states: A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances: (3) While there is any drug defined in section or its metabolite in the person s body. 23 This statute is part of the statutory plan to prohibit driving or physical control of a vehicle while under the influence of alcohol and/or drugs. In this case, Defendant was cited because he evidenced carboxy-thc in his blood. Carboxy-THC results from the metabolism of hydroxy- THC while hydroxy-thc is a product of metabolizing marijuana. The question the trial court faced was whether the secondary metabolic product of a primary metabolic product of marijuana was covered by the terms of the statute which penalized the use of marijuana. Because the statute referred to metabolite in the singular form, Defendant argued the Legislature intended only to govern drugs such as marijuana and the metabolic product of the drug that affects a person s behavior. In support of his Motion to Dismiss and/or appellate memorandum, Defendant argued carboxy-thc was not covered by the statute because it (1) is not an immediate metabolite of marijuana; (2) had no mind-altering properties; and (3) the plain language of the statute refers only to metabolite in the singular, rather than metabolites (plural). In contrast, the State argued (1) the use of the singular form of a word usually includes plural forms; (2) carboxy-thc is a metabolite of marijuana; and (3) Arizona precedent established that the State did not need to prove the presence of a particular metabolite. The first issue this Court must address is whether the language of the statute is plain and obvious or if the statute is subject to statutory construction. In State v. Johnson, 171 Ariz. 39, 41, 827 P.2d 1134, 1136 (Ct. App. 1992) the Court of Appeals wrote: If the language of a statute is clear and unambiguous, we must give it effect without resorting to any rules of statutory construction. Accord, Homebuilders Ass n of Cent. Arizona v. City of Scottsdale, 186 Ariz. 642, 648, 925 P.2d 1359 (Ct. App. 1996). The wording chosen by the Legislature uses only the singular form for metabolite. The State argued that pursuant to A.R.S , the use of the singular form of a word includes the use of the plural forms and, therefore, metabolite in the statute refers not only to hydroxy-thc the immediate metabolite but also to carboxy-thc, a derivative of hydroxy-thc. Because there is significant argument about whether the term metabolite is singular or plural, this Court finds the meaning is not clear and unambiguous. Therefore the term is subject to analysis about whether (1) the Legislature intended to cover only the active and impairment causing metabolites for the listed substances or (2) the Legislature 23 The most recent amendment to this law retained the singular form of the term metabolite. Laws 2012, Ch. 236, 1 eff. April 11, 2012, retroactively effective to Jan. 1, Docket Code 512 Form L512 Page 4

5 intended to cover any metabolic end product for any listed substance that could still remain in a person s body even though that substance did not impair a person s driving. This Court notes the singular form of the term metabolite has been used since its inception 24 and has not been altered during the many changes to the statute over the years. In reviewing statutes, this Court is guided by the general principle that the legislature is (1) presumed to mean what it says Padilla v. Industrial Commission, 113 Ariz. 104, 106, 546 P.2d and (2) is aware of the rules of statutory construction State v. Garza-Rodriguez, 164 Ariz. 107, 111, 791 P.2d 633, 637 (1990). These rules include the general principle that words in the singular include the plural and vice versa. However, this concept is not mandatory. In Estate of McGill ex rel McGill v. Albrecht, 203 Ariz. 525, , 57 P.3d 384, (2002) the Arizona Supreme Court said: We do not believe rigid application of A.R.S is appropriate, given the statute laying down the general rule requiring us to interpret statutes liberally and in such a manner as to effect their objects and to promote justice. A.R.S (B). Further, we are commanded not to apply the statutory rules of construction when such construction would be inconsistent with the manifest intent of the legislature. A.R.S (A). Our courts have always construed A.R.S as a permissive statute, permitting us to interpret the singular as the plural and the plural as the singular when such an interpretation will enable us to carry out legislative intent. Although the State argues for the use of the plural metabolites in the context of this case, the State has not shown and this Court has not been persuaded that the legislature necessarily intended to include all possible derivatives of drugs particularly inactive end products that no longer affect an individual within the statutory scheme of controlling impaired drivers. Furthermore, our Court of Appeals has held that the provisions of A.R.S must be applied together with the provisions of A.R.S which requires the courts to effect legislative intent. Estate of McGill ex rel McGill v. Albrecht, id., 203 Ariz. at , 57 P.3d at Therefore this Court finds the use of the singular metabolite is not subject to either the plain meaning rule or to the rule of statutory construction declaring plural and singular words to be interchangeable. Instead, this Court finds the term is subject to statutory construction and must be considered in the context of the entire statutory scheme of which it is a part. Oaks v. McQuiller, 191 Ariz. 333, 334 5, 955 P.2d 971, (Ct. App. 1998). Courts determine intent by reading the statute as a whole, giving meaningful operation to all of its provisions, and by considering factors such as the statute s context, subject matter, historical background, effects and consequences, and spirit and purpose. Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996). In arriving at this conclusion, this Court notes the rule of statutory 24 The singular form was used in the predecessor statute, A.R.S The statute was renumbered as A.R.S in Docket Code 512 Form L512 Page 5

6 construction interpreting the singular word form as the plural refers to plurals of the same item or class and not something different. 25 Here, however, the item referred to carboxy-thc is not the result of the initial breakdown of THC; instead, it results from the breakdown of hydroxy- THC. 26 This Court begins its analysis with a definition of the term metabolite which is defined as a product of metabolism, or a substance essential to the metabolism of a particular organism or to a particular metabolic process. 27 Because carboxy-thc is a secondary metabolic result of the body s metabolism of marijuana, carboxy-thc fits within the meaning of the term metabolite and is a product of metabolism. Having determined carboxy-thc is a metabolite, this Court must consider if the Arizona Legislature intended to include carboxy-thc within the rubric governed by the statute or if the Legislature only intended to include the primary metabolic product hydroxy-thc. The State s expert, Mr. Nabozney, testified about carboxy-thc and said carboxy-thc (1) is not psychoactive and (2) can take up to four weeks before it is completely evacuated from the body. To demonstrate the legislature intended to include carboxy-thc within the metabolite classification for purposes of enforcing A.R.S (A)(3) the State argued that Arizona courts have upheld prosecution of defendants who manifested carboxy-thc in their systems and cited State v. Phillips, 178 Ariz. 368, 873 P.2d 706 (Ct. App. 1994) and State v. Hammonds, 192 Ariz. 528, 968 P.2d 601 (Ct. App. 1998). 28 Neither of these cases appears to apply to the current situation. In State v. Phillips, id., the police tested Ms. Phillips for drugs because she stated she had taken Percocet earlier that day. The test revealed both methamphetamine and a marijuana metabolite and defendant was prosecuted under the precursor to A.R.S (A)(3). 29 After the State s witness testified methamphetamine (1) impairs judgment and cognitive skills and (2) lasts for six to eight hours defendant was convicted. She appealed and claimed the statute was vague and overbroad. The Court of Appeals disagreed and held: We fail to see how section (A)(3) is ambiguous in any way. It precisely defines, in unequivocal terms, the type of behavior prohibited: No one may drive or be in actual physical control of a vehicle if there is any amount of illicit drug or its metabolite in that person s system. 25 For example, the plural of the word child would be children but not grandchildren. 26 THC is mainly metabolized to 11-OH-THC (11-hydroxy-THC) by the human body. This metabolite is still psychoactive and is further oxidized to 11-nor-9-carboxy-THC (THC-COOH)." Neither case was cited by the State prior to the trial court s ruling. However, the State did include references to these cases in their Motion To Reconsider and their appellate memorandum. 29 A.R.S (A)(3). Docket Code 512 Form L512 Page 6

7 State v. Phillips, id., 178 Ariz. at 371, 873 P.2d at 709. The Court of Appeals continued and held: The statute gives fair and objective guidelines to both potential offenders and law enforcement personnel than any driver who has ingested a proscribed drug will be subject to prosecution. State v. Phillips, id., 178 Ariz. at 371, 873 P.2d at 709. This Court notes the language (1) does not apply to the situation before this Court and (2) does little to explain the meaning of the term metabolite in the statute. In Phillips, id., the defendant admitted to using Percocet earlier in the day and the laboratory test revealed a combination of methamphetamine and a marijuana metabolite. The Court of Appeals did not identify the particular marijuana metabolite and this Court cannot determine if Ms. Phillips had carboxy-thc or hydroxy-thc in her system. Additionally, the Court of Appeals used the singular as opposed to the plural term for metabolite in its opinion and did not distinguish between carboxy-thc and hydroxy-thc as metabolic products. Phillips, id., discussed (1) whether the statute was overly broad; 30 (2) violated due process; or (3) violated the equal protection clause. Those are not the issues before this Court. In Phillips, id., the Court of Appeals ruled A.R.S (A)(3) was a strict liability statute. The Court held the statute was rationally related to a legitimate state purpose because it was enacted to reduce the terrible toll of life and limb on the roads. State v. Phillips, id., 178 Ariz. at 371, 873 P.2d at 709. The Court of Appeals stated: We believe that the legislature was reasonable in determining that there is no level of illicit drug use which can be acceptably combined with driving a vehicle; the established potential for lethal consequences is too great. The state has a compelling legitimate interest in protecting the public from drivers whose ability may be impaired by the consumption of controlled substances and the legislature reasonably could have concluded that the per se prohibition embodied in section (A)(3) provided an effective deterrent to such activity. And, although section (A)(1) already makes it unlawful to drive while impaired by illegal drugs, the legislature could have rationally determined that the absence of a reliable indicator of impairment necessitated a flat ban on driving with any proscribed drugs in one s system. The challenged language does not create any type of presumption; it creates a valid prohibition. State v. Phillips, id., 178 Ariz. at 372, 873 P.2d at 710 [citation omitted]. The logic of Phillips, id., does not appear to follow in the current case. Here, the evidence indicated Defendant did not have any level of illicit drug THC in his system. Instead, Defendant manifested an inactive metabolite as opposed to a proscribed drug or active metabolite. Thus, although the Court of 30 The Court of Appeals (1) found she lacked standing to challenge the statute on behalf of others and (2) precluded her from raising an argument that the statute is overly broad because it might apply to persons who passively inhale marijuana smoke. State v. Phillips, id., 178 Ariz. at 371, 873 P.2d at 709. Docket Code 512 Form L512 Page 7

8 Appeals determined there can be inherent dangers in drugs in State v. Phillips, id., this is not the situation in the current case. Instead, at the time Defendant was tested, there were no quantification or potency problems because the only substance found carboxy-thc is an inactive substance that does not affect a person s brain or ability to drive. State v. Phillips, id., did not discuss (1) a situation where the only indication of drug use is the inactive remnants of the drug or (2) the meaning of the term metabolite. Therefore State v. Phillips id., does not address the issue before this Court. Finally, because the State s expert witness indicated carboxy-thc can last for approximately one month, the Court of Appeals determination that the statute gives guidelines to potential offenders that ingesting the drug will subject them to prosecution could only happen if the potential offenders know the long lifespan of the drug. The State has not provided information indicating this is common knowledge. In State v. Hammonds, id., the Court of Appeals addressed an equal protection argument. Mr. Hammonds was tested for drug use and the tests revealed the presence of carboxy-thc as well as meprobamate and hydroxycarisoprodol, metabolites of the drug Soma. 31 The Court of Appeals made the following comment about drugs in urine as compared to drugs found in the bloodstream: It is only when the drug is in the bloodstream that it is capable of impairment of driving skills, and this impairment lasts only so long as the drug is in the bloodstream. At the metabolite stage, the metabolic component detected in the urine is inactive, in the sense that it is incapable of causing impairment. Many drugs will continue to appear in the urine in metabolite form for days or even weeks after use. A urine test, while indicative of what has been in the bloodstream in the past, says nothing conclusive about what is presently in the bloodstream. State v. Hammonds, id., 192 Ariz. at 530, 968 P.2d at 603. The Court of Appeals (1) focused on the urinalysis in Hammonds, id;. and (2) was concerned the test had no ability to determine current drug use. In contrast, Defendant underwent a blood test and the results of his blood test indicated there was no THC or hydroxy-thc in Defendant s bloodstream. Hammonds, id., examined enforcement problems that no longer apply. In 1998, the Court of Appeals was concerned with the technical ability to discern impaired drivers from unimpaired drivers. To that end, the Court of Appeals commented about Phillips, id., and stated: We found that the statute created a flat ban on driving with any proscribed substance in the body, whether capable of causing impairment or not. We further found that this prohibition was permissible under the police power because, unlike alcohol, there was no acceptable level of drug use that could be quantified so as to distinguish between users who could drive unimpaired and those who were presumptively impaired. Consequently we found that the legislature could have 31 The Court did not know if Defendant was convicted for the Soma metabolite as well as the marijuana metabolite or just for the marijuana metabolite. Docket Code 512 Form L512 Page 8

9 reasonably concluded that no level of illicit drug use could be acceptably combined with driving a vehicle. It was therefore entirely rational for the legislature to respond to this reality with the flat ban the statute imposed. State v. Hammonds, id., 192 Ariz. at 531 9, 968 P.2d 601, [citations omitted]. The Court of Appeals continued and determined the safe harbor provision for those persons operating vehicles with properly prescribed medications buttressed the conclusions that the statute was a rational exercise of police power. State v. Hammonds, id., 192 Ariz. at , 968 P.2d 601, The Court of Appeals then rejected Mr. Hammonds argument requiring blood testing as opposed to urine testing. After noting blood testing can detect the presence of the active component of a prescribed drug the Court of Appeals rejected the argument that blood testing should be the required protocol. The Court of Appeals said: We reject this argument for three reasons, the first a practical one. Hammonds argument assumes that blood testing for the parent drug would be as effective a means of detecting and removing impaired drivers as urine testing for metabolites. However, while a urine sample can be provided to an officer at a police station or jail facility, A.R.S. section (F) (Supp. 1997) requires that a blood draw be made by a physician, a registered nurse, or another qualified person. Obviously, that requirement would place a significant additional burden on the state and it could very well result in less efficient enforcement. State v. Hammonds, id., 192 Ariz. at , 968 P.2d 601, This is no longer true. Blood testing is now done on a routine basis by many police departments. The Court of Appeals continued and held the impaired driving statute had a secondary purpose of deterring drug use. In 1998, marijuana use was proscribed. In 2012, this is no longer completely true in almost one third of the states. Additionally, the Court of Appeals ruled blood testing would not detect any evidence of marijuana use if the marijuana had completely metabolized. State v. Hammonds, id., 192 Ariz. at , 968 P.2d 601, This, too, is no longer accurate. Criminalist Nabozney testified about the ability of the blood test evidence to show carboxy-thc as well as hydroxy-thc and identified the minimal amount of carboxy-thc that appeared in Defendant s blood. 32 Finally, State v. Hammonds, id., was an equal protection case and the Court of Appeals never squarely confronted the issue currently before this Court if metabolite in the impaired driving statute refers to inactive secondary metabolites that may remain in the blood days or weeks after no active metabolite can be found. In 2001, the Court of Appeals in State v. Boyd, 201 Ariz. 27, 31 P.3d 140 (Ct. App. 2001) discussed A.R.S (A)(3) and how this strict liability offense did not apply to a 32 Defendant had eight nanograms of carboxy-thc. Criminalist Nabozney stated it was possible to test carboxy- THC in a range of two nanograms to over 100 nanograms and said anything over 100 nanograms is listed as 100. He testified hearing transcript of September 7, 2011, at p. 24, ll he saw levels over 100 nanograms in other cases. Docket Code 512 Form L512 Page 9

10 particular individual. In State v. Boyd, id., the Court of Appeals determined culpability should not attach when a person ingested a legal product without knowledge or notice that it could be converted by his body to a proscribed substance GHB. Although this case reaffirmed that violations of A.R.S (A) (3) are strict liability crimes, it imposed an exception because Boyd did not possess the proscribed substance until it had metabolized in his body. Certainly there was no evidence that Boyd knew that GBL converted into GHB when ingested. State v. Boyd, 201 Ariz. at 31 20, 31 P.3d at In the current case, there was no information indicating Defendant knew the inactive metabolite carboxy-thc could subject him to prosecution for driving while impaired. Importantly, there is no indication the legislature intended the driving while impaired statute be used as a vehicle to prosecute unimpaired drivers. In arguing the legislature did not intend to cover inactive metabolites, Defendant asserted the State s reasoning produced an absurd result as it can allow a defendant to be prosecuted for driving under the influence when the person is not under the influence of any incapacitating drug. This Court finds Defendant s reasoning persuasive, particularly in light of the statutory history for the law. The same term metabolite has been used since the inception of the law. The legislature made no changes to this language in its most recent session even though the Arizona Medical Marijuana Act was passed in 2010, 33 allowing patients legal access to the drug in Arizona. 34 The legislature s failure to change the language may indicate the legislature did not intend for the term metabolite to include more than the single active metabolite hydroxy- THC particularly in light of the possibility that a growing number of people may be driving with the inactive metabolite present in their blood. Other states have decriminalized marijuana use or substantially lowered the classification to a petty offense. 35 Residents of these states, particularly those geographically near Arizona, are likely to travel to Arizona. It would be irrational for Arizona to prosecute a defendant for an act that might have occurred outside of Arizona several weeks earlier. Based on an extension of Mr. Nabozney s testimony, it is conceivable that a defendant could use marijuana in California or Colorado states which have decriminalized the use of marijuana drive to Arizona as much as four weeks later, and be cited for driving under the influence despite there being no impairment because the carboxy-thc derivative may still be present in the person s blood. Because (1) there is little information to apprise potential defendants of this possibility; (2) medical marijuana is used to treat a variety of illnesses; (3) a growing number of states now 33 Added by Initiative Measure, Prop. 203, approved election Nov. 2, 2010, eff. December 14, This Court notes that in passing the Medical Marijuana Act, A.R.S , the legislature used the plural form of the word metabolites rather than the singular form. This indicates the legislature is aware of the difference between the plural and singular forms for the noun. Despite this awareness, the legislature did not change the term metabolite to metabolites when it revisited and amended A.R.S during the most recent legislative session. 35 For example, Alaska has decriminalized possession of less than one ounce of cannabis. Several cities in California have passed measures declaring possession of non-medical cannabis to be the lowest priority for law enforcement. Colorado makes possession of less than one ounce of marijuana a petty offense. Docket Code 512 Form L512 Page 10

11 allow for the use of medical marijuana; and (4) some sister states and cities are increasingly decriminalizing marijuana use; this possibility may criminalize otherwise innocent conduct that did not cause any impairment. 36 While the State may prosecute in cases where the driver is impaired, if the term metabolite is construed to include inactive carboxy-thc, there is potential for a person to be prosecuted for driving as much as a month after ingesting marijuana. This is more akin to a status crime. In Robinson v. California, 370 U.S. 660, 82 S. Ct (1962), the U.S. Supreme Court in commenting on status crimes said: It is not a law which even purports to provide or require medical treatment. Rather, we deal with a statute which makes the status of narcotic addiction a criminal offense, for which the offender may be prosecuted at any time before he reforms. California has said that a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there. Robinson v. California, id., 370 U.S. at 666, 82 S. Ct. at The statutory scheme is one intended to secure the safety of Arizona s roads. The purpose behind the statute is to penalize driving or physical control when impaired. Where, as here, there is no showing of a drug or metabolite that causes impairment, the driver should not be subjected to criminal penalties that can include up to ten consecutive days in jail and assessments of over $1, However, as noted by the trial court, whether the term metabolite in A.R.S includes secondary and inactive metabolic products is a case of first impression. III. CONCLUSION. Based on the foregoing, this Court concludes the Arcadia Biltmore Justice Court did not err when it granted Defendant s Motion to Dismiss. IT IS THEREFORE ORDERED affirming the judgment of the Arcadia Biltmore Justice Court. IT IS FURTHER ORDERED remanding this matter to the Arcadia Biltmore Justice Court for all further appropriate proceedings. IT IS FURTHER ORDERED signing this minute entry as a formal Order of the Court. /s/ Myra Harris THE HON. MYRA HARRIS Judicial Officer of the Superior Court Although not raised by either party, this Court recognizes a determination to include carboxy-thc as a metabolite may impair the Constitutional right to travel. See Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 902, 106 S. Ct. 2317, 2320 (1986) where the U.S. Supreme Court held a state law implicates the right to travel when it actually deters such travel. Docket Code 512 Form L512 Page 11

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