#prop 207

In 2020 Arizona voters approved Proposition 207 which legalized marijuana use for those 21 years or older and decriminalized most uses by those under 21 years. Proposition 207 said no drivers can be guilty of the crime of DUI for having THC in their body, unless the THC is impairing the user. 

Proposition 207 did not address the civil, non-criminal driver license consequences of driving with THC in the body. 28-1385 provides for a 90-day license suspension if a driver had in their body, “Any drug defined in section 13-3401 [which includes THC] or its metabolite in the person's body except if the person possesses a valid prescription for the drug.” The Department of Transportation Motor Vehicle Division (MVD) has interpreted this law to mean no driver, even those with a Medical Marijuana Card (which is an authorization, not a prescription) can drive with any THC in their body. Under this interpretation a driver who has legally consumed THC cannot legally drive under any circumstances.

On October 1, 2024 the Arizona Court of Appeals held the MVD’s interpretation of Proposition 207 is wrong for two reasons.  Frist, the Court said, the MVD’s interpretation limits the legal use of Marijuana.  The Proposition says in what is now 36-2852(A) “notwithstanding any other law…, the State cannot “abrogate or limit any right or privilege conferred or protected by the laws of this state . . . .”  A driver’s license is a privilege conferred by the State. Since a driver can legally use and drive with a non-impairing level of THC in them, to suspend a driver’s license for doing so would be a limitation of the legal use of THC in violation of Proposition 207.  This reason applies to drivers who are legally using Marijuana. Any driver 21 years or older can legally use Marijuana but those under 21 years cannot legally use Marijuana. Most usages by those under 21 is not a crime but it is also not legal, and therefore this reason the Court of Appeals would apply to those under 21.

Second, the Court said the MVD’s interpretation also violates the Proposition in what is now 36-2853(B) which says a driver cannot be guilty of DUI Marijuana unless the driver is impaired to the slightest degree. The court said this shows an intent to not limit use for the non-impaired use of Marijuana and to suspend a license for that reason would also be a limitation on the legal use of Marijuana. In another case this year the Court of Appeals said this section, 36-2852(B) applies to all drivers including those under 21 and so this should mean impairment must also be proven for the license suspension of those under 21 years.

The Court of Appeals said the MVD can suspend a driver’s license for driving while impaired by THC.

An effect of this new Court of Appeals decision may be to turn MVD administrative hearings into trials. Prior to this decision all that was needed to uphold a 28-1385 DUI suspension is a valid test of a driver’s blood sample showing the presence of THC.  Proving that a driver was impaired by THC is not as simple or straightforward as simply presenting the contents of a lab report showing THC, and it will take more evidence to show a driver was impaired by THC.

Gordon Thompson

For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.

In 2020 Arizona Voters approved Proposition 207 which legalized Marijuana use for adults and in most situations decriminalized use by those under 21 years.

There are two ways someone can be guilty of misdemeanor DUI with drugs.  First, under A.R.S. 28-1381.A.1, by being impaired to the slightest degree.  Second, under 28-1381.A.3 by having within their body a controlled substance without legal authorization to do so. Under Federal law Marijuana remains a controlled substance. Since marijuana was now legal for adults and in most situations not criminal for those under 21, Proposition 207 changed 28-1381.A.3 by saying in the prosecution of any person the State had to prove the person was impaired to the slightest degree.  This was required because it made little sense to say people could still be guilty of having a controlled substance in the body, when it was not criminal to have the substance in the body. It further makes no sense to have a separate 28-1381.A.3, marijuana in the body charge when what the State has to prove, impairment to the slightest degree, was the same for both that charge and the 28-1381.A.1 Impairment Charge.

Some prosecutors argued that because the Proposition did not fully legalize marijuana use by those under 21 the change to 28-1381.A.3 requiring proof of impairment did not apply to them, and so someone under the age of 21 was automatically guilty of DUI for simply having marijuana in their body, even if they are not impaired.  The prosecutors argued the word “person”, a term defined in the Arizona criminal statute A.R.S. 13-105 as a human being, in the updated version of 28-1381.A.3 did not mean person, but really meant “person 21 years or older”.

On April 16, 2024, the Arizona Court of Appeals rejected this argument in my case State v. Boisvert, and said the word “person” in 28-1381.A.3, means “person” and not “person under the age of 21.”  Since the word “person” includes all persons, it means for all persons, and the State must prove a person of any age is impaired to the slightest degree in order to be guilty of DUI.

This result is especially important because of what it avoids.  If the court had agreed with the State and said “person” means “person 21 years or other” it would have produced an absurd result.  For example, an 18-year-old girl and her 21-year-old brother are separately driving the wrong way on a highway with a detectable but non-impairing level of THC in their body. The 21-year-old boy would be not guilty because he was not impaired to the slightest degree.  The 18-year-old girl, who is also not impaired but has THC in her body, since she is not a “person” for whom the State must prove impairment is guilty of 28-1381.A.3 and through it 28-1385.A.5, felony Aggravated DUI, and must serve 4 months in State Prison. The only difference in the above example is the person’s age, with the 21-year-old boy not guilty of DUI when his 18-year-old sister, who did the same thing as her brother, namely, driving the wrong way on a highway with a detectible by non-impairing level of THC, must suffer a felony criminal conviction and go to State Prison.  This would be an absurd result where a non-impaired 18 year old goes to prison whereas a non-impaired 21 year old is not guilty of DUI, however, it is important to note this result is what the prosecutors were trying to get the court of appeals to say is the law.

Gordon Thompson

For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.

Website:  https://www.GordonThompsonAttorney.net

It is a White Widow × Alien Lights OG hybrid.

This grow was started on March 17th 2021 and ended late in June when I finally chopped all of the plants down. It took approximately 3 months from seed to get to the point of chopping and drying. It is currently July 7th 2021 and it is getting trimmed and ready for curing. The curing will last 2-4 weeks. 

Photo of one of the plants on April 11th, 2021. I thought the leaves looked cool.

The grow started with 5 autoflower seeds. All seeds were planted in about 10 inch diameter fabric pots in a mix of coco coir (a soil less, hydroponic medium) and worm castings. Throughout their time with me they were fed Fox Farms Grow Big and closer to flowering they were also fed Fox Farms Tiger Bloom. A couple times they were also fed Fox Farms Big Bloom. They were never repotted and only trained with amateur low stress training aka I was bending the branches with garden wire to give more light to lower bud sites during flowering given the fact that these are autos and don't have as much time to recover from topping (cutting the top of the plant early on) and other training. I made the mistake of training somewhat late. Start training as soon as you have 3 good nodes. 

The seeds were successful in 10 inch fabric pots with no extra humidity assistance. My state is very warm so I needed no assistance in heat either. They were simply watered lightly once a day. The most important part of this grow was that the light was very close to the pots so that the seedlings would not stretch out to the light and topple over from the weight of the leaves. Keep the light close for the first couple weeks and slowly move it back to encourage height growth during early vegetative stages and then usually somewhere during this early time is a good chance to start training the plants as mentioned earlier. 

I fed them everyday or every other day depending on if I felt like mixing or not. There are actual mixing schedules you should follow especially with hydroponic mediums. I underfed them like crazy and paid for it. They grew a lot smaller and also at some point they crisped up from underwatering! Some people feed their plants 2-3 times a day at specific times of the day. Don't be me. I've started the task of building an automatic watering system to prevent negative consequences of my laziness (and will post about this system in more detail later). Despite my underwatering and underfeeding, I yielded significantly more than an ounce but have not formally weighed it because I lost my weigh!

At some point around the end, the underwatering took place and my plants crisped up on me. Some of them were salvageable but I made the decision to trim up the upper bud sites of the two plants that seemed to be taking it the hardest. 

For harvesting, invest in a 100x microscope for your phone/computer or 40x to 100x jewelers loupe. This way you can see the trichomes on your plant. You want them to be between mostly cloudy with a little amber. However, it's ultimately up to you as this may change the way the weed affects you! Experiment with harvesting at different times and see what you like. 

A pic of some of the trichomes of one of the buds of my plants! Mostly clear so I waited this out a little more.

A pic of the weed when I finally decided to harvest.

These pics are before the underwatering tragedy.

For the drying process, I made a mistake and wet trimmed the initial top harvest instead of dry trimming. Essentially, I trimmed before drying which caused the weed to dry too fast and it got a bit brown. The cure saved it a bit and it is more than smokeable. However, I dried the rest of the harvest whole (just cut the plant down and dried whole branches with the leaves and all) and had a much better end product. The weed was tossed into quart jars with some room at the top and cheap hygrometers. The jars will be burped once a day for about a week or so and left in a dark place for the next 3-4 weeks.