Greetings To All,
I was asked to draft a motion challenging the constitutionality of the Arizona 'zero tolerance" DUID law, in the context of an ongoing criminal case. I emailed NORML and inquired whether they had any briefs I could use as examples. Paul Armento said "sorry, we can't help you". I searched around and found Love v State (Georgia) and adapted the appellate brief in that case to a motion to dismiss, which I have pasted below - first draft.
This may be applicable to other "zero tolerance" states.
I have redacted the persons name, but this is a real case, now ongoing. It looks like he will beat the paraphernalia charge (empty snuff container), as the state cannot prove even constructive possession. They did send the container for lab analysis and it contained "some trichomes" . But there were 3 passengers, and the question of "knowingly possessed" must be proven.
We know this Motion will be denied, but it may work to get the charges dismissed, since the county likely won't want it going to the appellate court, as it costs them big $$$. And also, it might succeed!
If anyone can suggest improvements or know of other similar cases , please suggest. I have until Tuesday.
His attorney has agreed to finish it up and file it, if he gets a draft to him this coming week. He is demanding a trial by jury.
Thank you in advance,
IN THE _________ COURT OF THE STATE OF _____________
IN AND FOR THE COUNTY OF _____________
STATE OF ________________ ) Case No. _________
) Plaintiff, )
vs. ) MOTION TO DISMISS
) COUNTS __ AND ___ DUE
) TO UNCONSTITUTIONALITY
NOT GUILTY )
________________________________) Judge _____________
COMES NOW, __________, through counsel, ________________, who hereby moves the court to dismiss Count __ – “driving or being in actual physical control of a vehicle 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 substance if the person is impaired to the slightest degree”, a class 1 misdemeanor; and Count ___ "driving while drug in body", a class 1 misdemeanor in the above entitled action, due to the unconstitutionality of ARS __________and ARS ______________ as applied to him, (and others similarily situated).
STATEMENT OF FACTS
On _______________, defendant was driving in the Town of ___________ and was stopped for having a no tail lights. The stop occurred at 10:09pm. After an investigative detention, the arresting officer concluded that there was probable cause to arrest _________ for driving under the influence based on suspected paraphernalia that was discovered within his vehicle (a small empty, white container, alleged to have the odor of marijuana). _________ was charged with Possession of Drug Paraphernalia; – “driving or being in actual physical control of a vehicle 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 substance if the person is impaired to the slightest degree”; and driving while drug in body.
Since _______________ was on probation, he submitted to chemical testing upon demand, a requirement under the terms of his probation. Samples of his urine and blood were taken and sent to a lab for analysis. Immunoassay screening tests were run on his urine and on his blood. The results indicated the presence of marijuana metabolites 1 in both cases.
A more precise quantitative test was then run on the blood sample, using gas chromatography / mass spectrometry techniques. The result showed a level of “cannabinoids” in the blood sample of between ______nanograms per milliliter (µgr/ml).
The court should dismiss Counts II and III for the following reasons:
(1) ARS _________ violates the equal protection clause of the United States Constitution and Article 2, Sections 4 and 13 of the Arizona Constitution by unreasonably discriminating against sober drivers with low levels of non-psychoactive marijuana metabolites in their blood or urine.
(2) ARS __________ violates the equal protection clause of the United States Constitution and Article 2, Sections 4 and 13 of the Arizona Constitution by arbitrarily discriminating against non-prescription marijuana users, prescription marijuana users and prescription Marinol users.
(3) ARS____________ violates substantive due process guarantees contained in the United States Constitution, Amendment V, and Article 2 Section 4 and 13 of the Arizona Constitution because every study ever conducted over the past 20 years, showed no significant driving impairment from the consumption of either non-prescription marijuana or prescription Marinol. A law can be declared violative of due process when the factual basic underlying the law has changed.
See Exhibits A,B,C,D,E,F,G,H (driving studies)
Summary with links attached. Also DOT Driving Studies (link)
I. EQUAL PROTECTION
The United States Constitution states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” United States Const. Amend XIV, §1. The Arizona Constitution similarly provides: “No person shall be deprived of life liberty or property without due process of law”. Az Const. Art. 2, Sec. 4. “No law shall be enacted granting any citizen, class of citizes, or corporation other than municipal. Privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.”
A criminal statute violates equal protection if it treats similarly situated persons differently for reasons not rationally related to the purpose of the statute. _(case cite).
“There are two prongs to an evaluation of legislation under an equal protection claim ... and, as the legislation is presumptively valid, the claimant has the burden of proof as to both prongs. Initially, the claimant must establish that he is similarly situated to members of the class who are treated differently from him. Next, the claimant must establish that there is no rational basis for such different treatment. [AZ Cite.]". “Where groups are similarly situated ‘[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.’ City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (105 SCt 3249, 3254, 87 LEd2d 313) (1985); Price v. Tanner, 855 F.2d 820, 822-23 (11th Cir.1988).”
The equal protection clause prohibits state legislation imposing criminal penalties upon a class of persons based on criteria that do not further the purpose of the statute. [Cite] Such arbitrary discrimination denies the affected class the equal protection of the laws.
ARS ____________ Violates the Equal Protection Clause by Arbitrarily Classifying Drivers with Low Levels of Residual Marijuana or prescription Marinol in their Blood or Urine as DUI.
DUI under subsection ___________________________is a zero tolerance, strict liability offense. One positive drug screen from the night of the arrest is enough to support a conviction.
The problem is that the presence of low levels of marijuana or its metabolites in a driver’s blood or urine does not indicate driving impairment or intoxication. The statute operates unconstitutionally against drivers with low levels of marijuana residue in their blood who are no longer under the influence of the drug. According to the evidence and the testimony given in the defendants preliminary hearing and in police reports, Defendant was in that class of persons when he was arrested; i.e. NOT impaired.
Controlled scientific studies have proven that the presence of marijuana metabolites in the blood is meaningless in terms of determining driving impairment. “It is not possible to conclude anything about a driver’s impairment on the basis of his/her plasma concentrations of THC and THC-COOH determined in a single sample.” Marijuana and Actual Driving Performance, Effects of THC on Driving Performance, U.S. Department of Transportation, National Highway Traffic Safety Administration, DOT HS 808 078 (November 1993), p.6.4 . The DOT study found that the statutory method of imposing strict liability for DUI based on a positive immunoassay screen for marijuana produces “arbitrary” results.
The objective of Arizon’a DUI statute, ________________ , is traffic safety. If a positive urine or blood test for marijuana residue does not indicate that the driver is a threat to traffic safety, then classification and punishment of such drivers does not further the purpose of traffic safety and is unlawfully arbitrary under Bickford v. Nolen, supra.
The inability to link driving impairment to the presence of marijuana in the blood is due to the pharmacokinetics of marijuana. Marijuana produces noticeable effects for one to five hours after it is smoked because of Tetrahydrocannabinol (THC), its active ingredient.6 These effects peak during the first hour and rapidly decline to 5 - 10% of the peak level. The metabolism and elimination of THC is very slow. THC and its metabolites are soluble in fatty tissues and remain there long after the user has stopped feeling the effects of the drug. Once ingested, THC and its metabolites are detectible in the user’s blood for several weeks.7
Since the evidence of smoking marijuana remains in the body for such a long time, a positive drug screen within an hour or so of an arrest does not mean that the driver was “high” or under the influence of the drug while driving.8 He might have been high two weeks ago.
Moreover, people do not generally drive poorly while high on marijuana. The DOT study referred to above indicates that marijuana does not impair driving performance at low doses, and in fact enhances driver safety once the effects of the drug are felt by the user.9 Low doses of marijuana have approximately the same effect on driving ability as many non-prescription decongestant drugs.10 Even at high doses, marijuana does not impair driving ability that much, as compared with alcohol. The study showed that drivers administered the highest dosage of THC showed impairment equivalent to an 0.08% blood alcohol level, equal to Arizona “per se” level of 0.08. 11
According to the State’s evidence, the level of total “cannabinoids” in _________ blood was __________ nanograms per milliliter (µg/ml). As a matter of science, it cannot be presumed that Hardesty was impaired in his driving ability on the night of his arrest based on the low levels of cannabinoids discovered by the Crime Lab test. Neither was there other evidence proving him to be unsafe to drive.
Not all “per se” DUI statutes are unfair: ARS _________________, which creates a conclusive presumption that persons with 0.08% grams blood alcohol are under the influence, is not arbitrary. Persons at that %BAC are almost always too intoxicated to drive. Furthermore, alcohol is metabolized and eliminated quickly (0.015% grams per hour), so there is no danger of detecting alcohol residue in the blood or urine days or weeks after intoxication. The classification and punishment of drivers with a BAC of 0.08% or higher is directly related to traffic safety, the purpose of the DUI law.
There has been no previous equal protection challenge to this statute in our State?? 13 State v. Phillips, 178 Ariz. 368, 873 P.2d 706 (1994) can be distinguished from the case at bar. Phillips was a methamphetamine / marijuana DUI case. The Court of Appeals of Arizona held that their state’s law prohibiting driving with any amount of illegal drugs in the system was rationally related to traffic safety because there was no way to set a meaningful “per se” impairment level.
In Love v State of Georgia, [CITE] the state attempted to show that plasma THC levels cannot be quantified backfired. Expert Witness, Dr. Holbrook was asked on direct, “can the level of cannabinoids in a person’s blood be quantified using scientific testing? A: Certainly.” (T. 89) Again, by the Solicitor on cross, “Q: Can the amount of marijuana in a person’s blood or urine be pinpointed to an exact amount? A: Certainly. Q: It can be? A: Yes.” (T. 91) He was also asked whether there was a scientific basis for a “per se” level above which marijuana can be presumed to impair driving, and responded “Yes, I think that there have been some human studies done that pretty well tell us that if you have a level of marijuana in your system of say 75 to 100 [nanograms per milliliter] that you stand a high likelihood of being intoxicated.” (T. 92) The DOT study bears out this testimony as being accurate, and provides additional details linking actual blood concentration levels to driving impairment.
Since a “per se” limit of 75-100 µg/ml is scientifically valid and enforceable in Arizona using equipment we already have, it cannot be intelligently argued that an “any amount” standard is the only workable standard. We know too much about marijuana to pretend that low levels “might be dangerous.” Everybody who has studied the subject now knows they are not.
B. ARS __________________ Violates the Equal Protection Clause by Arbitrarily Changing the Burden of Proof of Guilt for Prescription Marijuana or Marinol Users.
ARS ____________imposes two different burdens of proof for marijuana-related DUI prosecutions. Drivers who are legally entitled to use marijuana in the form of Marinol can only be convicted of DUI if they are proven to have driven while under the influence of the drug to the extent that it impaired their ability to drive safely. Drivers who have used non-prescription marijuana are guilty of DUI if they drive, regardless of whether they were under the influence. Defendant Danny Hardesty falls under both classes of drivers.
NOTES: 1. At the time of his arrest, ___________ had a valid prescription for Marinol. 2. At the time of his arrest ____________ was on probation for possession of marijuana and was prohibited from using the non-prescription marijuana pursuant to the terms of his probation. 3. ____________ is a member of The Church of ___________, a religious organization that deifies marijuana as “the Tree of Life”. ______________ has been prohibited by the State of Arizona from practicing his religion from 2006 to the present date. The matter is pending in the Arizona Court of Appeals Division 1, Case __________ .
The statutory segregation of prescription and non-prescription drug users is not rationally related to traffic safety, the purpose of the DUI law. The statute does not further the cause of traffic safety by giving prescription marijuana users a break at trial. The fact that marijuana is illegal does not have anything to do with traffic safety, which is compromised only when a driver is impaired by alcohol or drugs - any drugs.
Neither can it be said that illegal drugs users as a class are such a grave risk to traffic safety such that they may lawfully be discriminated against in traffic laws whenever possible. The vast majority of DUI-related traffic accidents involve alcohol, some involve both alcohol and drugs, and a small percentage can be attributable solely to illegal drugs alone. There is no safety-related reason to impose liability on illegal drug users for DUI without requiring proof of impairment. It makes about as much sense, in the context of traffic safety, as imposing strict liability for DUI on those who drive after cheating on their taxes.
II. SUBSTANTIVE DUE PROCESS
A criminal statute violates the due process clause where, considering the interests of both the public and of the individual defendant, there are other, less onerous means by which the public interests might be protected. Davis v. City of Peachtree City, 251 Ga. 219, 304 S.E.2d 701 (1983). When this substantive due process analysis is applied to the instant case, subsection _____________of the DUI statute falls short of what is constitutionally required.
The public has absolutely no interest in prosecuting unimpaired drivers for DUI. As shown above, there is no connection between the presence of marijuana metabolites in the blood and impaired driving ability. When applied to persons in Defendant’s position, the statute simply acts to deter marjuana consumption by criminalizing the act of driving within two or three weeks of use. Although it may be in the public interest to deter such drug use, there are better ways to do so than prosecuting sober drivers for DUI simply because a screening test indicates that they used marijuana or Marinol at some time in the past.
In opposition to these minimal interests of the public are those of the individual. Persons convicted of DUI face mandatory minimum jail time, fines, community service, onerous conditions of probation, substance abuse evaluation and treatment at their own expense, a license suspension, social stigmatization and other assorted economic and occupational disadvantages.
_____________’s arrest has resulted in the imposition of restraints on his rights to liberty, privacy, and free travel even though he was not a danger to other drivers. In truth, he is being punished for the “status” of being a marijuana and Marinol user.
The “zero tolerance” DUI-drugs law is a very inefficient way to prevent drug impaired driving, and the associated costs are unacceptable. There exists the constant risk of punishing an unimpaired driver for DUI.
To justify an “any amount” DUI drug law like Arizona’s on the basis that a meaningful “per se” level cannot be fixed is an affront to the presumption of innocence. If no per se impairment level can be found, the correct answer is to require the State to prove that the driver was impaired. DUI cases are won every day where the alcohol test is under 0.08% and the State has to prove that the driver was under the influence to the extent that it was less safe for the Defendant to drive. The only fair way to prosecute DUI-drugs cases is under subsection (a)(2).
Flimsy science can no longer be used as an excuse for leaving a law on the books that puts unimpaired drivers in jail for DUI. ARS arbitrarily and unnecessarily discriminates against sober, unimpaired drivers who happen to have certain inert compounds in their bodies, it violates equal protection. Because this arbitrariness can be eliminated without compromising public safety by prosecuting DUI / drug suspects under ______________and the Controlled Substances Act, the statute offends substantive due process as well.
The defendant prays that the Court find ARS __________ and ____________ unconstitutional, as applied to him and others similarily situated, and dismiss Counts II and III of the Complaint.
Respectfully submitted this _______ day of ______ 2008.
1. THC is the ingredient in the marijuana plant that gives it its unique sedative-euphoriant psychedelic properties. The body breaks this active ingredient down into subcompounds called metabolites, the most common being 9-carboxy tetrahydrocannibinol (THC-COOH).
2. The Equal Protection Clause in the Arizona Constitution may, however, be interpreted to offer greater rights than the federal equal protection clause. [CITE]
3.________________ provides: (a) A person shall not drive or be in actual physical control of any moving vehicle while:
4. This finding was one of the main conclusions of the attached DOT paper. The same language can also be found in a Dutch study: Robbe, H.W.J., Marijuana's Effects on Actual Driving Performance, Institute for Human Psychopharmacology, University of Maastricht, Netherlands, (1995). The Australian government published a similar conclusion: "There is no clear relationship between blood levels of THC or its metabolites and the degree of either impairment or subjective intoxication." Hall, Solowij and Lemon, The Health and Psychological Consequences of Cannabis Use, National Drug and Alcohol Research Centre (Australia) (1995).
5. The statutory purpose of all the regulations codified as chapter 40-6 is to promulgate the safe and expeditious movement of vehicular traffic on the highways. Crook v. State, 156 Ga. App. 756, 275 S.E.2d 794 (1980).
6. Hall, Solowij and Lemon, supra.
8. "[A] positive urinalysis can indicate either recent use or use that occurred several weeks earlier. Multiple sampling may be necessary to differentiate the results. Thus, a single positive urine test does not mean that a person was under the influence of marijuana at the time the urine specimen was collected." Julien, Robert M., A Primer of Drug Action, 7th ed. (W.H. Freeman, New York 1995), p. 340.
9. The degree of psychomotor impairment is dependent on the dose of THC absorbed by the brain; however, the psychomotor impairment associated with use of marijuana is minimal, and is compensated for when driving, such that the impairment is irrelevant to driving skills. It has been shown that persons intoxicated by marijuana are often safer drivers than they would normally be because of their over-awareness of the effects of the drug. "Drivers under the influence of marijuana retain insight in their performance, and will compensate where they can, for example, by slowing down or increasing effort. As a consequence, THC's adverse effects on driving performance appear relatively small. . . Of the many psychotropic drugs, licit and illicit, that are available and used by people who subsequently drive, marijuana may well be among the least harmful." Marijuana and Actual Driving Performance, supra.
10. The NHTSA study shows the effect of "Benadryl" and "Actifed," two common non prescription drugs, to be worse than THC in terms of their effect on road tracking performance. "THC's effects [on driving] are in no way unusual. In so far as its effects on SDLP [standard deviation of lateral position, or maintaining lane], THC was just another moderately impairing drug." Id.
11. The NHTSA study summarized all available comparative studies and concluded that "THC's effects after doses of 300 ug/kg [highest dose] never exceed alcohol's at BACs of 0.08%." Id. The other materials cited herein agree that the range is 0.07 - 0.10%.
12. See attached GBI Crime Lab report.
13. The statute was attacked on vagueness grounds in Steele v State, 260 Ga. 835, 400 S.E.2d 1 (1991).
14. ___________ was pulled over for having no tail lights, which could have endangered other drivers; however, subsection __________ must here be analyzed in terms of the public's interest in punishing marijuana users who are otherwise safe drivers.