                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
    STATE OF ARIZONA, EX REL. WILLIAM G. MONTGOMERY, MARICOPA
                         COUNTY ATTORNEY,
                               Petitioner

                                   v.

THE HONORABLE MYRA HARRIS, COMMISSIONER OF THE SUPERIOR COURT
  OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
                     Respondent Commissioner

                       HRACH SHILGEVORKYAN,
                         Real Party in Interest

                          No. CV-13-0056-PR
                          Filed April 22, 2014

            Appeal from the Arcadia Biltmore Justice Court
           The Honorable David Fletcher, Judge Pro Tempore
                         No. TR 2011-100433
                            AFFIRMED

          Appeal from the Superior Court in Maricopa County
             The Honorable Myra Harris, Commissioner
                       No. LC 2011-100433-001
                            AFFIRMED

             Opinion of the Court of Appeals, Division One
                   232 Ariz. 76, 301 P.3d 580 (2013)
                              VACATED


COUNSEL:

William G. Montgomery, Maricopa County Attorney, Andrea L. Kever,
Deputy County Attorney, Susan L. Luder, Deputy County Attorney
(argued), Phoenix, for State of Arizona

Clark L. Derrick, Rhonda E. Neff, Kimerer & Derrick, P.C., Phoenix; and
Michael Alarid, III (argued), Law Offices of David Michael Cantor, P.C.,
Phoenix, for Hrach Shilgevorkyan
                                   1
                 STATE V. HARRIS (SHILGEVORKYAN)
                          Opinion of the Court

Stephen Paul Barnard, Law Offices of Stephen Paul Barnard P.C., Tucson;
Joe St. Louis, Nesci & St. Louis, PLLC, Tucson; and Lawrence S. Koplow,
Ridenour Hienton & Lewis, PLLC, Phoenix, for Amicus Curiae Arizona
Attorneys for Criminal Justice

Jon Eliason, Mesa City Prosecutor, Molly Lynch, Assistant City
Prosecutor, Mesa, for Amicus Curiae Mesa City Prosecutor’s Office

JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF
JUSTICE BERCH, VICE CHIEF JUSTICE BALES and JUSTICE PELANDER
joined, and JUSTICE TIMMER dissented.

JUSTICE BRUTINEL, opinion of the Court:


¶1            Arizona Revised Statutes § 28-1381(A)(3) makes it unlawful
for a driver to be in actual physical control of a vehicle if there is “any
drug defined in [A.R.S.] § 13-3401 or its metabolite in the person’s body.”
We are asked to determine whether the phrase “its metabolite” includes
Carboxy-Tetrahydrocannabinol (“Carboxy-THC”), a non-impairing
metabolite of Cannabis,1 a proscribed drug listed in § 13-3401. We
conclude that it does not.
                                    I.

¶2             Police stopped a vehicle driven by Hrach Shilgevorkyan for
speeding and making unsafe lane changes. Suspecting that he was
impaired, officers administered field sobriety tests. After participating in
the tests, Shilgevorkyan admitted that he had smoked some “weed” the
night before and voluntarily submitted to a blood test that revealed
Carboxy-THC in his blood.

¶3            The State charged Shilgevorkyan with two counts of driving
under the influence. Count one alleged a violation of A.R.S. § 28-
1381(A)(1) (“the (A)(1) charge”), which prohibits a person from driving a
vehicle in Arizona “[w]hile under the influence of . . . any drug . . . if the
person is impaired to the slightest degree.” Count two alleged a violation


1      Cannabis is commonly referred to as marijuana and as defined in
A.R.S. § 13-3401(4)(b) includes tetrahydrocannabinol (“THC”), its primary
psychoactive component.
                                      2
                  STATE V. HARRIS (SHILGEVORKYAN)
                           Opinion of the Court

of A.R.S. § 28-1381(A)(3) (“the (A)(3) charge”), which prohibits driving a
vehicle “[w]hile there is any drug defined in § 13-3401 or its metabolite in
the person’s body.”

¶4            Shilgevorkyan moved to dismiss the (A)(3) charge, arguing
that the blood test revealed neither the presence of THC nor “its
metabolite” Hydroxy-Tetrahydrocannabinol (“Hydroxy-THC”). At an
evidentiary hearing, the State presented expert witness testimony that: (1)
marijuana has “many, many metabolites,” (2) Hydroxy-THC and
Carboxy-THC are the two major marijuana metabolites, (3) although it is
possible to test for Hydroxy-THC in the blood, the Arizona Department of
Public Safety chooses not to do so because Hydroxy-THC does not “exist
in the blood for very long” and is quickly converted to Carboxy-THC, (4)
Carboxy-THC is inactive and does not cause impairment, and (5)
Carboxy-THC can remain in a person’s body for as many as twenty-eight
to thirty days after the ingestion of marijuana.

¶5             At the conclusion of the hearing, the justice court dismissed
the (A)(3) charge, and the State voluntarily dismissed the (A)(1) charge.
The State appealed to the superior court, which affirmed. That court
reasoned that the word “metabolite” in § 28-1381(A)(3) is ambiguous
because it is unclear whether it should be read as singular or plural.
Although the court acknowledged that Carboxy-THC is a marijuana
metabolite, it was unconvinced that the legislature intended to include all
possible byproducts — particularly those that are inactive and cannot
impair the driver.

¶6            The State then filed a petition for special action with the
court of appeals, which accepted jurisdiction and granted relief. State ex
rel. Montgomery v. Harris ex rel. Cnty. of Maricopa, 232 Ariz. 76, 301 P.3d 580
(App. 2013). The court held that “§ 28-1381(A)(3)’s language prohibiting
driving with a proscribed drug or ‘its metabolite’ includes the metabolite
Carboxy-THC,” id. ¶ 14, based on the reasoning in State v. Hammonds, 192
Ariz. 528, 968 P.2d 601 (App. 1998), and State v. Phillips, 178 Ariz. 368, 873
P.2d 706 (App. 1994). The court in Hammonds held that the (A)(3) offense
was not “irrationally overinclusive,” 192 Ariz. at 530, 968 P.2d at 603, and
the court in Phillips determined that it was not unconstitutionally vague or
overbroad, 178 Ariz. at 370, 873 P.2d at 708. The court of appeals noted
that although neither case considered the meaning of “metabolite,” they
demonstrated that A.R.S. § 28-1381(A)(3) “must be interpreted broadly to

                                      3
                  STATE V. HARRIS (SHILGEVORKYAN)
                           Opinion of the Court

appropriately effectuate the legislative purpose and intent underpinning
the statutory language.” Montgomery, 232 Ariz. at 79 ¶ 14, 301 P.3d at 583.


¶7          We granted review because whether § 28-1381(A)(3) applies
to non-impairing metabolites presents a recurring issue of statewide
importance. We have jurisdiction under Article 6, Section 5(3) of the
Arizona Constitution and A.R.S. § 12-120.24.

                                       II.

                                       A.

¶8            We review questions of statutory interpretation de novo.
State v. Hansen, 215 Ariz. 287, 289 ¶ 6, 160 P.3d 166, 168 (2007). When
interpreting a statute, our goal is to “fulfill the intent of the legislature that
wrote it.” Bilke v. State, 206 Ariz. 462, 464 ¶ 11, 80 P.3d 269, 271 (2003).
“[T]he best and most reliable index of a statute’s meaning is its language
and, when the language is clear and unequivocal, it is determinative of the
statute’s construction.” Hansen, 215 Ariz. at 289 ¶ 7, 160 P.3d at 168.

¶9            The term “metabolite” is not defined by statute. When
statutory terms are undefined, courts may reference dictionaries. State v.
Wise, 137 Ariz. 468, 470 n.3, 671 P.2d 909, 911 n.3 (1983); see Baker v. Univ.
Physicians Healthcare, 231 Ariz. 379, 384 ¶ 15, 296 P.3d 42, 47 (2013). A
standard medical dictionary defines metabolite as “[a]ny product of
metabolism.” Taber’s Cyclopedic Medical Dictionary 1349 (20th ed. 2005).
It defines metabolism in pertinent part, as “the sum of all physical and
chemical changes that take place within an organism.” Id. These
definitions comport with the State’s expert’s testimony, which defined
“metabolite” as “any chemical compound that is produced during the
process of metabolism, the breakdown process of getting rid of a drug or
substance.”

¶10           Shilgevorkyan argues that the meaning of “its metabolite” in
§ 28-1381(A)(3) is clear. He asserts that because the statute uses the
possessive singular, it prohibits only Hydroxy-THC, the initial product of
the metabolism of THC.           Labeling Hydroxy-THC the “primary”
metabolite, he contends the statute does not include the products of the
further breakdown of Hydroxy-THC into subsequent or “secondary”
metabolites such as Carboxy-THC. He further argues that interpreting
                                        4
                 STATE V. HARRIS (SHILGEVORKYAN)
                          Opinion of the Court

“metabolite” in the plural expands the statutory definition to include a
“secondary non-psychoactive metabolite . . . [that] does not cause
impairment,” which is inconsistent with the legislature’s intent to
criminalize driving under the influence of an intoxicating substance. The
State, on the other hand, argues we should construe “metabolite” in the
plural in accordance with A.R.S. § 1-214(B), which generally provides that
statutory “[w]ords in the singular . . . include the plural . . . .”

¶11           There is more than one plausible meaning for the phrase “its
metabolite,” whether read as singular or plural. The argument that “its
metabolite,” although phrased in the singular, includes all of a proscribed
drug’s byproducts is reasonable based on § 1-214(B). Conversely, the
argument that the statutory language reflects the legislature’s intent to
only penalize drivers with primary or impairment-causing metabolites in
their system is equally reasonable. Additionally, even if read in the plural,
“metabolites” could reasonably mean multiple primary metabolites for
drugs having more than one rather than both primary and secondary
metabolites.

¶12          Because the term “its metabolite” is reasonably susceptible
to differing interpretations, the statute is ambiguous and we cannot
determine from the term alone whether the legislature intended to
penalize the presence of any byproduct, including Carboxy-THC, in a
driver’s blood. See Arizona Citizens Clean Elections Com’n v. Brain, CV-13-
0341-PR, 2014 WL 1307659, at *4 ¶ 13 (Ariz. Apr. 2, 2014); see also Joshua C.
Snow, The Unconstitutional Prosecution of Controlled Substance Metabolites
Under Utah Code § 41-6A-517, 2013 Utah L. Rev. OnLaw 195, 198 (2013)
(“Although [per se DUI] statutes are purportedly designed to make
prosecution simpler and more effective by removing the necessity to
prove impairment or quantifiable levels of drugs in the system, the
statutes are rife with ambiguity and complexity, which weaken their
legitimacy and validity.”). Accordingly, we look to secondary rules of
statutory construction to determine § 28-1381(A)(3)’s meaning.

                                     B.

¶13          Statutes should be construed sensibly to avoid reaching an
absurd conclusion. Mendelsohn v. Super. Ct. in and for Maricopa Cnty., 76
Ariz. 163, 169, 261 P.2d 983, 987–88 (1953). When a statute’s meaning
cannot be discerned from its language alone, “we attempt to determine

                                     5
                  STATE V. HARRIS (SHILGEVORKYAN)
                           Opinion of the Court

legislative intent by interpreting the statute as a whole, and consider ‘the
statute’s context, subject matter, historical background, effects and
consequences, and spirit and purpose.’” Calik v. Kongable, 195 Ariz. 496,
500 ¶ 16, 990 P.2d 1055, 1059 (1999) (quoting Aros v. Beneficial Arizona, Inc.,
194 Ariz. 62, 66, 977 P.2d 784, 788 (1999)). Courts also consider “the policy
behind the statute and the evil it was designed to remedy.” State v. Korzep,
165 Ariz. 490, 493, 799 P.2d 831, 834 (1990). Furthermore, we consider a
statute “in light of its place in the statutory scheme,” Grant v. Bd. of Regents
of Univ. and State Colls. of Ariz., 133 Ariz. 527, 529, 652 P.2d 1374, 1376
(1982), and although statutory title headings are not part of the law, they
can aid in its interpretation, State v. Barnett, 142 Ariz. 592, 597, 691 P.2d
683, 688 (1984).

¶14           The State’s interpretation that “its metabolite” includes any
byproduct of a drug listed in § 13-3401 found in a driver’s system leads to
absurd results. See State v. Estrada, 201 Ariz. 247, 251 ¶ 14, 34 P.3d 356, 360
(2001) (observing that a “result is absurd if it is so irrational, unnatural, or
inconvenient that it cannot be supposed to have been within the intention
of persons with ordinary intelligence and discretion”) (internal quotation
marks omitted).

¶15           Most notably, this interpretation would create criminal
liability regardless of how long the metabolite remains in the driver’s
system or whether it has any impairing effect. For example, at oral
argument the State acknowledged that, under its reading of the statute, if
a metabolite could be detected five years after ingesting a proscribed
drug, a driver who tested positive for trace elements of a non-impairing
substance could be prosecuted.

¶16           Additionally, this interpretation would criminalize
otherwise legal conduct. In 2010, Arizona voters passed the Arizona
Medical Marijuana Act (“AMMA”), legalizing marijuana for medicinal
purposes. A.R.S. § 36-2801 et seq. Despite the legality of such use, and
because § 28-1381(A)(3) does not require the State to prove that the
marijuana was illegally ingested, prosecutors can charge legal users under
the (A)(3) provision. Because Carboxy-THC can remain in the body for as
many as twenty-eight to thirty days after ingestion, the State’s position
suggests that a medical-marijuana user could face prosecution for driving
any time nearly a month after they had legally ingested marijuana. Such a
prohibition would apply even when the driver had no impairing

                                       6
                  STATE V. HARRIS (SHILGEVORKYAN)
                           Opinion of the Court

substance in his or her body and notwithstanding the State’s ability to test
both for THC, the primary substance that causes impairment, and
Hydroxy-THC, the metabolite capable of causing impairment.

¶17             Finally, this interpretation would allow the prosecution of an
individual who drives after ingesting a legal substance that shares a non-
impairing metabolite with a proscribed substance.                For example,
serotonin, a legal substance, and the proscribed drug bufotenine share a
common metabolite, 5-hydroxindoleactic acid (“5-HIAA”).2                    See
Kärkkäinen, Jorma, et al., Urinary excretion of bufotenin (N, N -dimethyl-5-
hydroxytryptamine) is increased in suspicious violent offenders: A confirmatory
study, 58 Psychiatry Research, 145 (1995); Moore, Todd M., et al., A meta-
analysis of serotonin metabolite 5-HIAA and antisocial behavior, 28 Aggressive
Behavior, 299 (2002). Under the State’s interpretation of “metabolite,” it
could prosecute a driver who had 5-HIAA in his or her system after
ingesting a legal serotonin supplement or, for that matter, whose blood
contains 5-HIAA as a byproduct of naturally produced serotonin. Because
§ 28-1381(A)(3) does not require the State to prove that a substance
discovered in a driver’s body is actually metabolized from a proscribed
drug, the State’s interpretation would permit prosecution if the discovered
substance is a metabolite of a proscribed drug even if the proscribed drug
was never ingested. These results are absurd and make the State’s
argument untenable.3

2      Bufotenine, proscribed by A.R.S. § 13-3401(6)(a)(v), is a
hallucinogenic drug generally ingested by licking the backs of cane toads.
See Christen Conger, Are there really hallucinogenic frogs?, HOW STUFF
WORKS (August 12, 2008), http://www.science. howstuffworks.com/
zoology/reptiles-amphibians/hallucinogenic-frog1.htm

3      The Dissent notes that under its plain language interpretation, § 28-
1381(A)(3) might be constitutionally challenged as applied to a driver who
had ingested a legal (or naturally occurring) substance that shares a
metabolite with an illegal drug or who legally ingested marijuana.
Dissent at ¶ 31. In support of this assertion the Dissent cites State v. Boyd,
201 Ariz. 27, 29–30 ¶¶ 12–13, 31 P.3d 140, 142–43) (App. 2001), which held
§ 28-1381(A)(3), as applied, void for vagueness, id. That § 28-1381(A)(3) is
subject to more than one reasonable interpretation, one of which might
render it unconstitutional, highlights its ambiguity. Furthermore, we
“construe statutes, when possible, to avoid constitutional difficulties.”
                                      7
                  STATE V. HARRIS (SHILGEVORKYAN)
                           Opinion of the Court

                                      C.

¶18           The legislative history behind § 28-1381(A)(3) reflects that
the legislature sought to prevent impaired driving. The statute was added
in 1990 by House Bill (“H.B.”) 2433. A Senate fact sheet explained that
H.B. 2433’s purpose was to “make numerous substantive and conforming
changes to the provisions relating to the offense of driving under the
influence of liquor or drugs.” STAFF OF ARIZ. S., 39TH LEGIS. 2D SESSION,
H.B. 2433 FACT SHEET, at 1 (June 21, 1990).

¶19           Section 28-1381(A)(3)’s placement within the statutory
scheme also demonstrates a legislative intent to prevent and punish
impaired driving, not simply driving while having a non-impairing
metabolite in one’s system. The “its metabolite” language appears in the
“Driving Under the Influence” section of Arizona’s statutes. A.R.S.
Chapter 4, art. 3. And the statute’s title begins “Driving or actual physical
control while under the influence . . . .” A.R.S. § 28-1381 (emphasis added).

¶20           Consistent with this legislative history, the court of appeals
has noted that “[t]he state has a compelling legitimate interest in
protecting the public from drivers whose ability may be impaired by the
consumption of controlled substances . . . .” Phillips, 178 Ariz. at 372, 873
P.2d at 710. The court further explained that the (A)(3) charge was
enacted as a part of comprehensive DUI legislation “designed to protect
the public by ‘reducing the terrible toll of life and limb’ on our roads.” Id.
(quoting Fuenning v. Supr. Ct. in and for Maricopa Cnty., 139 Ariz. 590, 595,
680 P.2d 121, 126 (1983)).

¶21           This legislative intent is further evidenced by A.R.S. § 28-
1381(A)(2), which provides that “[i]t is unlawful for a person to drive or
be in actual physical control of a vehicle . . . [i]f the person has an alcohol
concentration of 0.08 or more within two hours of driving or being in
actual physical control of the vehicle . . . .” Neither the (A)(2) nor (A)(3)
charge requires that the State prove impairment. The (A)(2) charge creates
a per se threshold at which a driver is presumed to be under the influence.
See State v. Cooperman, 232 Ariz. 347, 350 ¶ 10, 306 P.3d 4, 7 (2013)
(explaining that under § 28-1381(A)(2), whether the driver was impaired


State v. Gomez, 212 Ariz. 55, 60 ¶ 28, 127 P.3d 873, 878 (2006) (citing Hayes
v. Cont’l Ins. Co., 178 Ariz. 264, 272, 872 P.2d 668, 676 (1994)).
                                      8
                  STATE V. HARRIS (SHILGEVORKYAN)
                           Opinion of the Court

does not matter — the only pertinent questions are whether the alcohol
concentration exceeded 0.08 and the reading was taken within two hours
of driving or being in actual physical control of the vehicle).

¶22           Similarly, in enacting the (A)(3) charge, the legislature
sought to proscribe driving by those who could be impaired from the
presence of illegal drugs in their body. However, unlike alcohol, there is
no generally applicable concentration that can be identified as an indicator
of impairment for illegal drugs. Phillips, 178 Ariz. at 372, 873 P.2d at 710
(explaining that drugs’ potency cannot be accurately predicted); see also
Gary M. Reisfield et al., The Mirage of Impairing Drug Concentration
Thresholds: A Rationale for Zero Tolerance Per Se Driving under the Influence of
Drugs Laws, 36 J. Analytical Toxicology 353 (2012) (explaining that
multiple phenomena make the task of establishing impairing
concentrations impossible). The (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. Although the legislature
could rationally choose to penalize the presence of any amount of an
impairing metabolite, we do not believe that the legislature contemplated
penalizing the presence of a metabolite that is not impairing.

¶23           We find that the legislature intended to prohibit driving
with any amount of an impairing substance resulting from a drug
proscribed in § 13-3401 in the body. The State, however, essentially
contends that the legislature intended a law that punishes driving under the
influence to also punish drivers who it cannot prove were under the
influence or had any impairing substance in their system at the time of
driving. We are not persuaded and reject the State’s argument that § 28-
1381(A)(3) “creates a flat ban on the presence of any drug or its metabolite
in a person’s body while driving or in actual physical control of a vehicle,”
even when the only metabolite found is not impairing. But we likewise
reject Shilgevorkyan’s argument that “its metabolite” means only the
primary metabolite, because there are drugs proscribed under § 13-3401
that have multiple primary or secondary impairing metabolites. See, e.g.,
Diazepam,     National     Highway      Traffic   Safety   Administration,
http://www.nhtsa.gov/people/injury/research/job185drugs/diazepam.
htm (last visited April 2, 2014) (explaining that diazepam has multiple
psychoactive metabolites).



                                       9
                STATE V. HARRIS (SHILGEVORKYAN)
                         Opinion of the Court

¶24           Because the legislature intended to prevent impaired
driving, we hold that the “metabolite” reference in § 28-1381(A)(3) is
limited to any of a proscribed substance’s metabolites that are capable of
causing impairment.4      Accordingly, marijuana users violate § 28-
1381(A)(1) if they drive while “impaired to the slightest degree,” and,
regardless of impairment, violate (A)(3) if they are discovered with any
amount of THC or an impairing metabolite in their body. Drivers cannot
be convicted of the (A)(3) offense based merely on the presence of a non-
impairing metabolite that may reflect the prior usage of marijuana.

                                   V.

¶25           The record establishes that Carboxy-THC, the only
metabolite found in Shilgevorkyan’s blood, does not cause impairment.
Accordingly, we vacate the court of appeals’ opinion and affirm the trial
court’s dismissal of the (A)(3) charge.




4     In light of our holding that “its metabolite” does not include
Carboxy-THC, we do not address Shilgevorkyan’s various constitutional
arguments.
                                   10
                 STATE V. HARRIS (SHILGEVORKYAN)
                      JUSTICE TIMMER, Dissenting

JUSTICE TIMMER, dissenting:

¶26           Arizona is one of at least seven states that combats drugged
driving with a zero-tolerance, per se ban on driving with any controlled
substance or its metabolite in the body.            Joshua C. Snow, The
Unconstitutional Prosecution of Controlled Substance Metabolites Under Utah
Code § 41-6A-517, 2013 Utah L. Rev. OnLaw 195, 197–98 & n.14 (2013).
One of these states, Delaware, explicitly excludes inactive metabolites
from its per se ban. Del. Code Ann. tit. 21, § 4177(c)(10) (West 2014). The
Majority aligns Arizona with Delaware by construing A.R.S. § 28-
1381(A)(3) in a manner that contradicts its plain meaning. I respectfully
dissent.

¶27          The Majority holds that § 28-1381(A)(3) is ambiguous
because the phrase “its metabolite” can mean all of a proscribed drug’s
metabolites, some of its metabolites, or only those that can cause
impairment. See Op. ¶ 11. But “metabolite” has an accepted meaning, see
Taber’s Cyclopedic Medical Dictionary 1349 (20th ed. 2005), and nothing
in the language of § 28-1381 suggests that the legislature intended to
exclude certain types of metabolites from the statutory prohibition.
Because § 28-1381(A)(3) “admits of only one meaning,” it is not
ambiguous. See Parrot v. DaimlerChrysler Corp., 212 Ariz. 255, 257 ¶ 7, 130
P.3d 530, 532 (2006); see also State v. Phillips, 178 Ariz. 368, 371, 873 P.2d
706, 709 (App. 1994) (“We fail to see how section [28-1381(A)(3)] is
ambiguous in any way. It precisely defines, in unequivocal terms, the
type of behavior prohibited[.]”).

¶28           I also disagree with the Majority that the legislature must
have intended something different from what it plainly stated in § 28-
1381(A)(3) because imposing a flat ban on driving with any metabolite of
an illegal drug in the body is absurd. See Op. ¶¶ 14–17. The legislature
reasonably could have concluded that a zero-tolerance provision would
most effectively enhance detection and prosecution of drugged driving.

¶29           First, the difficulty of detecting drug impairment justifies a
flat ban. See Phillips, 178 Ariz. at 372, 873 P.2d at 710 (noting that, unlike
the case with alcohol impairment, “there is no useful indicator of
impairment from . . . drugs because they are fundamentally different from
alcohol”). For example, an expert witness in this case testified that
Hydroxy-THC converts quickly to Carboxy-THC, which is why law

                                     11
                 STATE V. HARRIS (SHILGEVORKYAN)
                      JUSTICE TIMMER, Dissenting

enforcement typically does not test blood for Hydroxy-THC. Thus, a
driver with Carboxy-THC in the blood at the time of testing may or may
not have had Hydroxy-THC in the blood while driving. The flat ban
ensures that a driver who had an impairing substance in the body while
driving is prosecuted even though that substance may have quickly
metabolized into a non-impairing substance.

¶30           Second, the flat ban permits law enforcement to detect
drugged driving by testing urine as well as blood. “[W]hile a urine test
detecting metabolites does not conclusively establish the presence of the
active proscribed parent drug in the bloodstream, neither does it rule it
out, because the metabolite and the active parent will often be present in
the body simultaneously.” State v. Hammonds, 192 Ariz. 528, 531 ¶ 10, 968
P.2d 601, 604 (App. 1998). Imposing a flat ban on driving with a
metabolite of a controlled substance in the body enhances law
enforcement’s ability to detect drugged driving. Cf. id. ¶ 11 (“In seeking
to protect the life and health of its citizenry, the legislature cannot be
required to forego an effective prophylactic measure simply because it
may be somewhat imprecise.”).

¶31            The Majority contends that a flat ban is absurd because it
permits prosecution if the non-impairing metabolite in the driver’s body
derives from ingesting either medically authorized marijuana or a legal
substance that shares a metabolite with a controlled substance. See
Op. ¶¶ 16–17. These isolated examples do not make the flat ban on the
presence in the body of hundreds of proscribed drugs or their metabolites
absurd. Either scenario described by the Majority would unquestionably
trigger constitutional scrutiny that might invalidate § 28-1381(A)(3) as
applied in particular circumstances. Cf. State v. Boyd, 201 Ariz. 27, 29–30
¶¶ 12–13, 31 P.3d 140, 142–43 (App. 2001) (holding that although “A.R.S. §
28-1381(A)(3) is not facially vague,” applying it to a defendant who
consumed a legal product, GBL, that metabolized into GHB, a proscribed
substance, was unconstitutional as applied to the defendant because it
“fail[ed] to give him adequate notice that his actions were illegal”). And §
28-1381(A)(3) might not apply if the detected metabolites — active or
inactive — emanated from medically authorized marijuana use. See A.R.S.
§ 28-1381(D) (“A person using a drug as prescribed by a medical
practitioner licensed pursuant to title 32, chapter 7, 11, 13 or 17 is not
guilty of violating subsection A, paragraph 3 of this section.”). This case
does not present either situation.

                                    12
                 STATE V. HARRIS (SHILGEVORKYAN)
                      JUSTICE TIMMER, Dissenting

¶32          I share some of the Majority’s concerns about imposing a
zero-tolerance, per se ban on driving with the presence of non-impairing
metabolites in the body. But because § 28-1381(A)(3) clearly and
unambiguously reflects that the legislature intended this result, it is not
appropriate to employ secondary canons of statutory construction to find
a different meaning. Any constitutional challenges to this provision
should be addressed on a case-by-case basis. I would affirm the court of
appeals’ opinion.




                                    13
