Personal Freedom

Legally Consume Cannabis, Yet Become a Criminal in Utah?

Utah is surrounded by six states, four of which have legalized the possession and use of cannabis to some degree. This means that on a daily basis, drivers from these states pass through Utah’s borders—and in doing so, unwittingly subject themselves to being charged with a class B misdemeanor (up to six months in jail and/or up to a $1,000 fine).

While many people believe that a person should be prohibited from driving while under the influence (of alcohol or drugs), Utah’s law goes much further. It says that “a person may not operate or be in actual physical control of a motor vehicle within this state if the person has any measurable controlled substance or metabolite of a controlled substance in the person’s body.”

A metabolite is the molecular byproduct of your body’s processing of a substance. Though derived from a psychoactive substance, a metabolite may not necessarily be psychoactive itself. The presence of metabolites—and not the presence of the original drug itself—is the primary indicator of drug use for drug testing programs such as urinalysis or hair testing.

The problem is that metabolites may remain in a person’s body for quite some time after the substance was ingested, and the psychoactive effect felt. With cannabis, a person may be affected for up to a day, yet the metabolite may remain in their body for days afterwards—sometimes up to a month.

What this means is that a person may have legally ingested cannabis in another state, and then days or weeks later while traveling into Utah may have his blood or urine sample taken, resulting in the discovery of metabolites. And that person would be charged with a class B misdemeanor.

Parenthetically, few people are aware that a person driving in Utah “is considered to have given the person’s consent to a chemical test or tests of the person’s breath, blood, urine, or oral fluids for the purpose of determining whether the person was operating or in actual physical control of a motor vehicle.” By merely operating a vehicle in this state, you’ve evidently given consent to have your bodily fluids provided to the government upon request.

Now, the state is gracious enough to have provided a few “affirmative defenses” to prosecution for violating this metabolite law—meaning that if you can prove that one of the criteria match your circumstances, you’re off the hook. One such defense is that the controlled substance was “prescribed by a practitioner for use by the accused.” All well and good, for states that have medical marijuana programs—but only if they require a physician’s prescription.

But what about Colorado, another bordering state? Cannabis is legal for recreational (non-medicinal) use, and therefore no prescription would exist. In such cases, another affirmative defense is thought to apply—if the person can prove that the controlled substance was “otherwise legally ingested” they’re in the clear.

But anybody following the ever-changing cannabis policy landscape is aware that while states are loosening up their laws, each to a varying degree, the draconian DEA has refused this far to re-classify cannabis on its schedule of drugs, and therefore cannabis remains illegal for use under federal law. Thus, prosecutors may argue in court that even if a person ingested cannabis in Colorado, it actually was not “legal.”

Earlier this year, Arizona’s Supreme Court narrowed the state’s metabolite law that was similar to Utah’s. The justices opined that “[d]rivers cannot be convicted of the… offense based merely on the presence of a non-impairing metabolite that may reflect the prior usage of marijuana.”

The Court noted that if non-impairing metabolites could lead to a conviction as a DUI, “a medical-marijuana user could face prosecution for driving any time nearly a month after they had legally ingested marijuana.” Importantly, the justices also observed that there exist some illegal drugs that share non-impairing metabolites with legal substances. One example is serotonin and the hallucinogen bufotenine, both of which share a common metabolite. Before the Court’s ruling, an Arizona driver could have been prosecuted for DUI after ingesting a serotonin supplement (or even from metabolizing naturally-produced serotonin). Arizona’s Supreme Court referenced these potential results as “absurd.”

An ongoing court case in Utah aims to strike down the state’s metabolite law for violating due process rights in a “cruel and unusual” fashion. We’ve been in touch with the lead attorney for the case, as well as state legislators interested in policy reform. Expect to see a proposal to that end in next year’s legislative session.

No person should be punished for driving in a manner that does not threaten or harm another person. Those who legally ingest cannabis in another state, and who later operate a vehicle in Utah, should not be singled out for prosecution. We consider this a common sense position and therefore expect there to be significant support for amending Utah’s laws to better reflect this view.