Personal Freedom

Utah ‘measurable amount’ drug statute ruled unconstitutional

Earlier this month, a Utah court of appeals ruled in State v. Ainsworth that the penalties under the state’s Controlled Substance Act, which criminalize having “any measurable amount” of a controlled substance in your body, are unconstitutional. This is because the law penalizes the same conduct worse than the DUI statute and is thus unconstitutional as it violates the uniform operation of laws provision of the Utah Constitution.

As the court wrote, “there does not appear to be any rational basis for punishing individuals who have ‘any measurable amount’ of controlled substance in their bodies more harshly than individuals who have an incapacitating amount of the substance in their bodies.” The court went on to rule that there is no “rational basis for charging users of nonprescribed Schedule I or II controlled substances who have a measurable amount of controlled substance in their body, but not enough to render them incapable of safely operating a motor vehicle, with a higher-degree crime than users of nonprescribed Schedule I or II controlled substances who have so much controlled substance in their body that they are demonstrably unsafe to operate a vehicle. Thus, we agree… that the second-degree designation in subsection (2)(h)(i) in the Measurable Amount Statute violates the uniform operation of laws provision of the Utah Constitution.”

This is an interesting development, as a similar and related problem currently exists under Utah law for the presence of cannabis metabolites. Under Utah law, “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.” The Utah statute currently focuses on criminalizing a status rather than on criminalizing dangerous behavior. The mere presence of a metabolite is not evidence of impairment. Actual impaired drivers are unsafe and may be legitimately brought under regulation and criminal sanction. However, it would be absurd to say that anyone who has consumed any alcohol in the last 30 days may not operate a vehicle—but that is essentially what the law states for cannabis. The metabolite of THC from cannabis is Carboxy-THC and can remain in the body (without affecting impairment at all) for over a month after ingestion. Given that cannabis is legal in several of Utah’s surrounding states, and may become legal for a limited set of patients using it medically in Utah, this law is problematic.

In neighboring Arizona, the state’s Supreme Court narrowed their metabolite law, which previous to the change was similar to Utah’s. The court wrote, “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… 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.”

The Arizona Court concluded: “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. Accordingly, … 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.”

Likewise, Utah’s law should be tailored to impairment. Under the proposed Medical Cannabis Act, medical patients who use cannabis legally in Utah would be able to use an affirmative defense to this metabolite law in Utah. However, this does not deal with out-of-state cannabis patients traveling through the state, or even recreational users who may have used legally in a neighboring state. More work is needed to reform Utah’s metabolite law.