Thursday, January 21, 2016 | 17 comments

Utah ‘measurable amount’ drug statute ruled unconstitutional

By Josh Daniels

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.

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About the Author

Josh Daniels is a policy advisor for the Libertas Institute. He graduated with a B.A. in Political Science from Brigham Young University and with a J.D. from the University of Houston Law Center. Previously, he worked for three years as an aide to US Congressman Pete Olson and served for eight years in the United States Marine Corps.


16 comments
JSilverzweig
JSilverzweig

@CB_Ute I mean. There HAS to be a Constitutional provision that violates. It's just basic justice.

JSilverzweig
JSilverzweig

@CB_Ute @LibertasUtah Internal possession-type statutes are such mess. Actus reus was lesson 101 in law school. These statutes don't have it

CB_Ute
CB_Ute

@JSilverzweig Individuals who get in an accident resulting in major injury then face years behind bars because of the inactive ingredient.

JSilverzweig
JSilverzweig

@CB_Ute and at no point does the state have to prove that they ever actually did anything wrong or had any intent to act wrongfully.

JSilverzweig
JSilverzweig

@CB_Ute accidental intoxication is a borderline case, but it does happen. Granny takes a bite of the wrong brownies & dies in jail? Yuck.

CB_Ute
CB_Ute

@JSilverzweig Ind.'s statutes do not require any knowledge of the intoxication or intent--having the ingredient in the system is sufficient.

JSilverzweig
JSilverzweig

@CB_Ute How is the Court there? I really like Utah's Supreme Court. Not afraid to color outside of the lines now and again.

CB_Ute
CB_Ute

@JSilverzweig I like the appellate courts out here. I'll advise clients, "this is a bad trial court case but a great court of appeals case."

Defender
Defender

The Utah Court of Appeals still held the Measurable Amount Statute constitutional; it just held that a defendant convicted under the statute is subject to third degree felony penalties, not second degree penalties.


The DUI With Serious Injury Statute and the Automobile Homicide Statute subject those convicted under them to third degree felony penalties. Accordingly, the Ainsworth court held that "the second-degree [felony] designation ... in the Measurable Amount Statute violates the uniform operation of laws provision of the Utah Constitution."

Liberator
Liberator

I think lines 1440-1441 of SB 73, as well as existing language stating that a controlled substance was "otherwise legally ingested" should provide an affirmative defense to the scenario about which the author is concerned: "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."

theicecowboy
theicecowboy

This seems (I'm no lawyer) very supportive of how this issue is laid out in the Utah Medical Cannabis Act (SB73).  And is therefore a welcome development in terms of that bill.

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  1. […] If you want to read more about this topic, I recommend a great article by Josh Daniels (found here) that discusses the ruling in that […]

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