                                IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                 TRAVIS LANCE DARRAH, Petitioner,

                                      v.

  THE HONORABLE CRANE MCCLENNEN, Judge of the SUPERIOR
   COURT OF THE STATE OF ARIZONA, in and for the County of
               MARICOPA, Respondent Judge,

     CITY OF MESA PROSECUTOR’S OFFICE, Real Party in Interest.

                         No. 1 CA-SA 14-0054
                          FILED 10-21-2014


 Petition for Special Action from the Superior Court in Maricopa County
                        No. LC2013-000517-001 DT
                 The Honorable Crane McClennen, Judge

            JURISDICTION ACCEPTED; RELIEF DENIED


                              COUNSEL

John P. Tatz Attorney at Law PC, Glendale
By John P. Tatz
Counsel for Petitioner

Mesa City Prosecutor’s Office, Mesa
By W. Craig Jones
Counsel for Real Party in Interest
             DARRAH v. HON. MCCLENNEN/CITY OF MESA
                        Opinion of the Court



                                OPINION

Judge Michael J. Brown delivered the decision of the Court, in which Judge
Margaret H. Downie joined and Presiding Judge Kent E. Cattani specially
concurred.


B R O W N, Judge:

¶1            The narrow question before us is whether Arizona’s Medical
Marijuana Act (“AMMA”) prohibits the State from prosecuting an
authorized marijuana user for driving under the influence (“DUI”)
pursuant to Arizona Revised Statutes (“A.R.S.”) section 28-1381(A)(3),
which criminalizes driving while there is any prohibited drug or its
metabolite in a person’s body. For the reasons set forth below, we conclude
that the AMMA does not give an authorized medical marijuana user
immunity from prosecution.

¶2            In December 2011, Travis Lance Darrah was charged with two
counts of DUI in violation of A.R.S. § 28-1381—one based on impairment
under subsection (A)(1), and the other based on the presence of marijuana
or its metabolite under subsection (A)(3).1 It is uncontested that Darrah was
an authorized medical marijuana user at the time of his arrest and a test

1      Section 28-1381 provides as follows, in relevant part:

      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:

      1.     While under the influence of intoxicating liquor, any
      drug, a vapor releasing substance containing a toxic
      substance or any combination of liquor, drugs or vapor
      releasing substances if the person is impaired to the slightest
      degree.

      ....

      3.   While there is any drug defined in § 13-3401 or its
      metabolite in the person’s body.



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              DARRAH v. HON. MCCLENNEN/CITY OF MESA
                         Opinion of the Court

taken after his arrest revealed that Darrah’s blood contained 4.0 ng/ml of
delta-9-tetrahydrocannabinol (“THC”), which is an active component of
marijuana.

¶3            Prior to trial in the municipal court, Darrah requested
dismissal of the (A)(3) charge based on his position that A.R.S. § 36-2802(D),
a provision of the AMMA, only permits prosecution of an authorized
marijuana user under § 28-1381(A)(1). The municipal court denied
Darrah’s request and then granted the State’s motion in limine to preclude
evidence that Darrah possessed a medical marijuana card at the time of the
offenses, finding that such evidence was not relevant to either charge.

¶4             A jury acquitted Darrah of the (A)(1) charge, but found him
guilty under § 28-1381(A)(3). On appeal, the superior court affirmed.
Darrah now seeks review by this court because he has no further right of
direct appeal. A.R.S. § 22-375(B). Thus, special action review is his only
available remedy. See Ariz. R.P. Spec. Act. 1(a) (stating special action
jurisdiction is available absent “an equally plain, speedy, and adequate
remedy by appeal”). In the exercise of our discretion, we accept review. See
Cicoria v. Cole, 222 Ariz. 428, 430, ¶ 9, 215 P.3d 402, 404 (App. 2009).

¶5           Darrah argues that his DUI conviction should be set aside
based on § 36-2802(D), which provides as follows:

       This chapter does not authorize any person to engage in, and
       does not prevent the imposition of any civil, criminal or other
       penalties for engaging in, the following conduct:

       ....

       D. Operating, navigating or being in actual physical control
       of any motor vehicle, aircraft or motorboat while under the
       influence of marijuana, except that a registered qualifying patient
       shall not be considered to be under the influence of marijuana solely
       because of the presence of metabolites or components of marijuana
       that appear in insufficient concentration to cause impairment.

(Emphasis added.) Darrah asserts that this provision manifests the intent
of the AMMA to make all authorized medical marijuana users immune
from prosecution unless they drive while impaired. Specifically, he argues
that under § 36-2802(D), a registered qualifying patient is subject to
prosecution only under § 28-1381(A)(1), which requires the State to prove a
person was driving while impaired to the slightest degree. Darrah
therefore concludes that a qualified patient is immune from prosecution


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           DARRAH v. HON. MCCLENNEN/CITY OF MESA
                      Opinion of the Court

under § 28-1381(A)(3), which bans a person from driving while there is any
drug or its metabolite in the person’s body. See A.R.S. § 36-2801(13)
(defining “qualifying patient”).

¶6             Nothing in the plain language of § 36-2802(D), or elsewhere
in the AMMA, supports Darrah’s interpretation of the statute. See Cave
Creek Unified Sch. Dist. v. Ducey, 233 Ariz. 1, 6-7, ¶ 21, 308 P.3d 1152, 1157-
58 (2013) (explaining that we interpret a voter-approved measure “to effect
the intent of the electorate that adopted it,” and, in doing so, we interpret
the words used according to their “natural, obvious and ordinary
meaning”) (internal quotation omitted). If Arizona voters had intended to
completely bar the State from prosecuting authorized marijuana users
under § 28-1381(A)(3), they could have easily done so by using specific
language to that effect. Cf. A.R.S. § 36-2811(B) (immunizing a registered
qualifying patient or registered designated caregiver from “arrest,
prosecution or penalty in any manner” for possessing an allowable amount
of marijuana), (C) (immunizing a physician from “arrest, prosecution or
penalty” for issuing a written certification that a patient is likely to benefit
from the use of medical marijuana), (D) (immunizing any person from
“arrest, prosecution or penalty in any manner” for being in the “presence
or vicinity of medical marijuana”), (F) (immunizing a medical marijuana
dispensary agent from “arrest, prosecution, search, seizure or penalty in
any manner” for possessing or dispensing marijuana or related supplies to
qualifying patients or registered designated caregivers). In the absence of
such specific wording, we will not presume the electorate intended
otherwise.

¶7             Moreover, accepting Darrah’s interpretation would directly
contravene State ex rel. Montgomery v. Harris, 234 Ariz. 343, 345-46, 347, ¶¶
16, 24, 322 P.3d 160, 162-63, 164 (2014). In Harris, the defendant was
prosecuted for DUI under § 28-1381(A)(3) based on testing results
indicating only the presence of an inactive marijuana metabolite. 234 Ariz.
at 343, ¶ 1, 322 P.3d at 160. Our supreme court held that a “non-impairing”
metabolite of marijuana is not a “proscribed drug” listed in A.R.S. § 13-3401
and therefore its presence in a person’s body cannot support a conviction
for DUI pursuant to A.R.S. § 28-1381(A)(3). Harris, 234 Ariz. at 347, ¶ 24,
322 P.3d at 164. In reaching this conclusion, the court explained that the
AMMA legalizes marijuana for medicinal purposes, but “[d]espite the
legality of such use[,] prosecutors can charge legal users under the (A)(3)
provision” because that statute “does not require the State to prove that the
marijuana was illegally ingested[.]” Id. at 346-47, ¶ 16, 322 P.3d at 163-64.




                                       4
           DARRAH v. HON. MCCLENNEN/CITY OF MESA
                      Opinion of the Court

Consistent with Harris, the AMMA does not operate as a bar to Darrah’s
prosecution for DUI under A.R.S. § 28-1381(A)(3).2

¶8            Darrah has raised no other issues in this special action and
thus we decline to express any opinion as to the existence of a carve-out
exception as addressed by the special concurrence. Because the superior
court properly affirmed Darrah’s DUI conviction and sentence, we accept
jurisdiction and deny relief.



C A T T A N I, Judge, Specially Concurring:

¶9             I concur with the decision to deny relief and uphold Darrah’s
conviction and sentence. I write separately, however, because I disagree
that the carve-out provision of Arizona’s Medical Marijuana Act
(“AMMA”) (A.R.S. § 36-2802(D)) can never operate as a bar to a driving
under the influence prosecution under A.R.S. § 28-1381(A)(3). I also
disagree that the Arizona Supreme Court’s decision in State ex rel.
Montgomery v. Harris, 234 Ariz. 343, 322 P.3d 160 (2014), is controlling
regarding whether someone who is a “registered qualifying patient” under
the AMMA can be convicted under § 28-1381(A)(3) if the amount of
marijuana or marijuana metabolite in the driver’s bloodstream was in
insufficient concentration to cause impairment.

¶10          Under A.R.S. § 36-2801, marijuana use is authorized under
certain circumstances. A.R.S. § 36-2802 expressly prohibits, however,
driving while under the influence of marijuana, except that under § 36-
2802(D), an authorized medical marijuana user “shall not be considered to
be under the influence of marijuana solely because of the presence of



2       In his petition, Darrah also asserts that the municipal court erred by
precluding him from asserting an affirmative defense under A.R.S. § 28-
1381(D), which prohibits a DUI conviction under § 28-1381(A)(3) (drug or
its metabolite) based on drug use “as prescribed by a medical practitioner
licensed pursuant to title 32, chapter 7, 11, 13 or 17.” But Darrah’s counsel
conceded that issue at oral argument, acknowledging that Darrah’s
certification for marijuana use was from a doctor of naturopathic medicine,
that such doctors are not licensed under Title 32, Chapter 7 (podiatrist), 11
(dentist), 13 (medical doctor), or 17 (osteopath), and therefore they do not
meet the requirements for issuing a qualifying certification under § 28-
1381(D).


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           DARRAH v. HON. MCCLENNEN/CITY OF MESA
                 Cattani, J., Specially Concurring

metabolites or components in insufficient concentration to cause
impairment.”

¶11           The Majority correctly notes that in Harris, the Arizona
Supreme Court referenced the AMMA, but nevertheless stated that “[the §
28-1381] (A)(3) charge establishes that a driver who tests positive for any
amount of an impairing drug is legally and irrefutably presumed to be
under the influence.” 234 Ariz. at 347, ¶ 22, 322 P.3d at 164. And the Harris
court further noted that marijuana users “violate (A)(3) if they are
discovered with any amount of THC or an impairing metabolite in their
body.” Id. at 347, ¶ 24, 322 P.3d at 164.

¶12           But unlike Darrah, the defendant in Harris was not an
authorized marijuana user under the AMMA. The Arizona Supreme Court
thus did not squarely address the carve-out exception for authorized users
under § 36-2802(D). Under this carve-out exception, in my view, an
authorized user cannot be convicted under § 28-1381(A)(3) if he or she
establishes that the amount of THC or marijuana metabolite in the blood
was in insufficient concentration to cause impairment.

¶13           I concur in the result in this case, however, because Darrah
did not make such a showing. The City presented testimony from a
criminalist who indicated that Darrah’s blood contained 4.0 ng/ml of delta-
9-tetrahydrocannabinol (THC) and 47 ng/ml of 11-nor-delta-9-
tetrahydrocannabinol-9-carboxylic acid (carboxy THC), which the
criminalist defined as marijuana and a marijuana metabolite. Although the
criminalist agreed that carboxy THC is not psychoactive, she testified that
THC itself is psychoactive and can cause impairment, noting in particular
that 4.0 ng/ml “could possibly” cause impairment.

¶14           The criminalist testified that there is no consensus or
agreement within the scientific community regarding the amount of THC
in a person’s body that would always indicate impairment. The criminalist




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           DARRAH v. HON. MCCLENNEN/CITY OF MESA
                 Cattani, J., Specially Concurring

acknowledged, however, studies suggesting impairment at a level of 5
ng/ml of THC, with “possible” impairment at levels between 2 and 5
ng/ml.3

¶15          Darrah did not present contrary expert testimony or
otherwise establish that 4.0 ng/ml is an insufficient concentration to cause
impairment. Because A.R.S. § 36-2802(D) provides a safe harbor only for
someone with marijuana components or metabolites in insufficient
concentration to cause impairment, this provision does not preclude
Darrah’s conviction and sentence.




3       Based on this testimony, Harris notwithstanding, in my view, an
authorized marijuana user with less than 2 ng/ml of THC in the blood
should not be convicted of driving under the influence under § 28-
1381(A)(3).
        Notably, other states that also authorize marijuana use have
adopted 5 ng/ml of marijuana in the bloodstream as a standard for
determining impairment under statutes similar to A.R.S. § 28-1381(A)(3).
In Washington, “[a] person is guilty of driving while under the influence of
intoxicating liquor, marijuana, or any drug if the person drives a vehicle
within this state: [when] [t]he person has, within two hours after driving, a
THC concentration of 5.00 or higher as shown by analysis of the person’s
blood [as measured in ng/ml of whole blood].” Wash. Rev. Code. §
46.61.502(1)(b). In Colorado, “[i]f at such time the driver’s blood contained
five nanograms or more of delta 9-tetrahydrocannabinol per milliliter in
whole blood, as shown by analysis of the defendant’s blood, such fact gives
rise to a permissible inference that the defendant was under the influence
of one or more drugs.” Colo. Rev. Stat. § 42-4-1301(6)(a)(IV). Unless and
until Arizona adopts a more specific standard, from my perspective, a
factfinder addressing charges of DUI under A.R.S. § 28-1381(A)(3) based on
the presence of marijuana or its metabolite in an authorized marijuana
user’s blood must rely on evidence (presumably from experts) regarding
whether a specific concentration of marijuana in the blood is insufficient to
cause impairment.


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           DARRAH v. HON. MCCLENNEN/CITY OF MESA
                 Cattani, J., Specially Concurring



¶16           In sum, in my view, the § 36-2802(D) carve-out exception
applies for authorized marijuana users accused of DUI. But because Darrah
did not establish that the concentration of THC in his blood was insufficient
to cause impairment, I agree that the carve-out exception does not apply in
this case, and Darrah’s conviction and sentence should be upheld.




                                 :gsh




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