State of Arizona Ex Rel. Montgomery v. Hrach Shilgevorkyan
322 P.3d 160
Ariz.
2014
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*1 justice BRUTINEL, opinion of the Court. § 28- 1 Arizona Revised Statutes Arizona, ex rel. William STATE it unlawful for a driver to makes MONTGOMERY, Maricopa G. if be in control of a vehicle actual County Attorney, Petitioner “any drug defined in [AR.S.] there is person’s body.” 3401 or its metabolite Myra HARRIS, to determine whether The Honorable Commis- We are asked Superior Carboxy- metabolite” includes sioner of the Court of Arizona, County Tetrahydrocannabinol (“Carboxy-THC”), in and for Cannabis,1 Maricopa, Respondent pro- non-impairing metabolite Commissioner. listed in 13-3401. con- Shilgevorkyan, Hrach Real not. clude that it does Party in Interest. No. CV-13-0056-PR. I. Supreme Court of Arizona. stopped a vehicle Police driven

April 2014. Shilgevorkyan speeding Hrach for and mak- changes. Suspecting that he unsafe lane impaired, officers administered field so- tests, briety participating After tests. admitted Shilgevorkyan that he had smoked night voluntarily some “weed” the before and blood submitted to a test that revealed Car- boxy-THC in his blood. charged Shilgevorkyan 3 The State

two under the influence. counts of alleged Count one a violation of A.R.S. 28- 1381(A)(1) (“the (A)(1) charge”), which County Montgomery, Maricopa G. William person hibits a a vehicle Kever, Attorney, County Deputy Andrea L. “[wjhile Arizona under the influence of ... Luder, Attorney, County Deputy Susan L. any drug person to the (argued), Phoenix, Attorney of Ari- for State slightest degree.” alleged Count two a viola- zona. 28-1381(A)(3) (“the (A)(3) tion of A.R.S. charge”), prohibits driving a vehicle Derrick, Neff, Clark L. Rhonda Kimer- E. any drug there is defined in “[w]hile Derrick, P.C., Phoenix; er & and Michael person’s body.” 3401 or its metabolite Alarid, (argued), III Law of David Offices Cantor, P.C., Phoenix, Hrach Michael for ¶ Shilgevorkyan moved to dismiss the Shilgevorkyan. arguing charge, the blood test Barnard, Paul Stephen Law Offices Ste- revealed neither of THC nor P.C., Tucson; phen Barnard Joe St. Paul Hydroxy-Tetrahydrocannab- “its metabolite” PLLC, Tucson; Louis, Louis, & Nesci St. (“Hydroxy-THC”). evidentiary inol At an Koplow, S. Hienton and Lawrence Ridenour hearing, presented expert witness Lewis, PLLC, Phoenix, & for Amicus Curiae (1) testimony marijuana “many, that: has Attorneys Arizona for Criminal Justice. metabolites,” Hydroxy-THC and Eliason, Prosecutor, City Molly major marijuana Jon Mesa are the two Mesa, metabolites, (3) Prosecutor, Lynch, City possible Assistant it is to test blood, City Hydroxy-THC Curiae Mesa Of- Amicus Prosecutor’s Arizona Safety Department fice. of Public chooses not to ("THC"), commonly tetrahydrocannabinol pri- Cannabis referred to as eludes mary psychoactive component. (4)(b) defined in in- and as 13—3401 *2 344 5(3) 6, the Arizona Article Section not “exist der Hydroxy-THC does

do so because AR.S. 12-120.24. and quickly Constitution long” and is very in the blood for (4) Carboxy- Carboxy-THC, converted II. impair-

THC is inactive and ment, remain in a Carboxy-THC can A. twenty-eight to body for as as person’s marijuana. statutory inter- days ingestion questions thirty review 8 We Hansen, 215 State v. pretation de novo. hearing, the At the conclusion of 5 (2007). ¶ 6, 166, 287, P.3d 168 289 160 Ariz. (A)(3) charge, and justice court dismissed statute, goal is to interpreting a our When voluntarily dismissed that wrote intent of the “fulfill the superior appealed to charge. The State ¶ 11, 462, State, Ariz. 464 80 it.” Bilke coui’t, court reasoned affirmed. That which (2003). 269, best and most “[T]he “metabolite” the word meaning is its index of a statute’s reliable unclear ambiguous because it is is and, language is clear and language when the singular or be read as it should whether of the stat- unequivocal, it is determinative acknowledged court Although the plural. Hansen, 215 Ariz. at 289 construction.” ute’s metabol- ¶ 7,160 P.3d at 168. ite, it was unconvinced not defined The term “metabolite” is possible byproducts— all intended to include unde- statutory terms are When statute. are inactive and can- particularly those that fined, may reference dictionaries. courts impair the driver. Wise, 470 n. 137 Ariz. petition for then filed a 6 The State (1983); Baker v. 911 n. 3 see Univ. appeals, the court of special action with Healthcare, Ariz. Physicians granted re- accepted jurisdiction and which (2013). A standard Montgomery v. Harris ex ex rel. lief. State as dictionary defines metabolite medical Cnty. Maricopa, 232 ret. Cy- Taber’s “[a]ny product of metabolism.” “ § (App.2013). The court held (20th Dictionary 1349 clopedic Medical 1381(A)(3)’s language prohibiting ed.2005). pertinent It defines metabolism metabolite’ proscribed drug or ‘its with a chemical “the of all part, as sum Carboxy-THC,” id. includes the metabolite organism.” changes place take within an reasoning in State v. Ham- based on the comport with the definitions Id. These monds, (App. testimony, defined expert’s which State’s 1998), State v. “any compound chemical “metabolite” The court in Ham- (App.1994). P.2d 706 during process of metabo- produced offense was monds held that lism, getting process of rid of the breakdown overinclusive,” “irrationally 192 Ariz. at or substance.” Phillips P.2d at and the court Shilgevorkyan argues that the mean- unconstitutionally that it was not determined §in ing of “its metabolite” overbroad, vague that because the statute clear. He asserts noted that appeals The court of P.2d at 708. possessive singular, prohibits uses the the mean- although neither case considered product the me- Hydroxy-THC, the initial “metabolite,” they demonstrated that ing of Labeling Hydroxy-THC tabolism of THC. interpreted “must be AR.S. metabolite, he contends the “primary” legis- broadly appropriately effectuate the products of the include the statute does not underpinning the and intent purpose lative Hydroxy-THC into further breakdown of Montgomery, 232 Ariz. statutory language.” “secondary” metabolites such subsequent or ¶ 14, 301 P.3d at 583. at 79 argues that Carboxy-THC. He further plural ex- interpreting “metabolite” because whether granted review to include a pands definition non-impairing me- applies “secondary non-psychoactive metabolite recurring issue of state- presents a tabolites impairment,” which is not cause jurisdiction un- does importance. [that] We have wide Super. legislature’s inconsistent with the intent to Mendelsohn v. Ct. in and Marico pa Cnty., under the influence of an criminalize State, intoxicating meaning on the oth- substance. When a statute’s hand, alone, argues er we should construe “meta- cannot be discerned from its plural attempt bolite” in the in accordance with “we to determine intent 1-214(B), whole, provides generally by interpreting the statute as a *3 context, statutory singular in subject the consider “[w]ords ‘the statute’s mat ter, plural____” background, include the historical effects and conse quences, spirit purpose.’” and and Calilc v. ¶ plausible 11 There is more than one ¶ 496, 16, Kongable, 195 Ariz. 990 P.2d metabolite,” meaning for the 1055, (1999) (quoting Aros v. Beneficial singular plural. whether read as Arizona, Inc., 62, 66, 194 Ariz. 977 P.2d metabolite,” argument that “its (1999)). policy Courts also consider “the phrased singular, includes all of a behind the statute and the evil it was de proscribed drug’s byproducts is reasonable signed remedy.” Korzep, State v. 1-214(B). Conversely, argu- based on (1990). 490, 493, Fur statutory language ment that the reflects the thermore, light “in we consider a statute legislature’s only penalize intent to drivers scheme,” place statutory its Grant v. primary impairment-causing metabol- Colls, Regents Bd. Univ. and State system equally ites in their reasonable. Ariz., 527, 529, 133 Ariz. Additionally, plural, even if read in the “me- (1982), although statutory headings and title reasonably multiple tabolites” could mean law, part they are not can aid primary drags having metabolites for more Barnett, interpretation, 142 Ariz. State than one rather than both and sec- ondary metabolites. ¶ 12 Because the term “its metabolite” is interpretation 14 The State’s that “its reasonably susceptible differing interpre- any byproduct metabolite” includes of a tations, ambiguous statute system listed in 13-3401 found a driver’s cannot determine from the term alone wheth- leads to absurd results. See State v. Estra- penalize er the intended to da, byproduct, including Car- (observing that a “result is absurd if it

boxy-THC, irrational, in a driver’s blood. See unnatural, Arizona is so or inconvenient Brain, Citizens Clean Elections Com’n v. supposed it cannot be to have been CV-13-0341-PR, persons ordinary within the intention of (Ariz. discretion”) (internal 2014 WL *4 13 intelligence quota- 2, 2014); Snow, Apr. omitted). see also Joshua C. tion marks Unconstitutional Prosecution Controlled notably, interpretation 15 Most this Substance Metabolites Under Code Utah liability regardless would create criminal Utah L.Rev. OnLaw il-SA-512013 long how the metabolite remains in the driv- (2013) (“Although [per statutes DUI] system er’s whether has purportedly designed prosecu- are to make argument effect. For at oral simpler by removing tion and more effective that, acknowledged reading under its necessity prove impairment quanti- statute, if a metabolite could be detected system, fiable levels of the stat- years proscribed drag, five after ambiguity utes complexity, are rife with positive a driver who tested for trace ele- legitimacy validity.”). which weaken their ments of a substance could be Accordingly, secondary we look to rules of prosecuted. construction to determine 28- 1381(A)(3)’smeaning. ¶ Additionally, interpretation would criminalize otherwise conduct.

B. passed Arizona voters the Arizona Medical (“AMMA”), sensibly Marijuana legalizing 13 Statutes should be construed Act mari- reaching juana purposes. to avoid an absurd conclusion. for medicinal use, discovered prove that a substance legality of such seq. Despite et actually from a does not re- er’s and because interpretation would prove drug, that the the State’s quire the State to sub- ingested, prosecutors can if the discovered illegally permit prosecution (A)(3)provision. charge legal users under the metabolite of a stance is a Carboxy-THC can remain in the in- drug was never Because even if the thirty twenty-eight to body for as and make These results are absurd gested. sug- ingestion, position the State’s days after argument untenable.3 the State’s medical-marijuana user could gests that a nearly driving any time prosecution for face C. they legally ingested mari- had a month history behind

juana. prohibition apply even Such a would sought reflects that impairing substance when the driver had no driving. The statute prevent notwithstanding body and in his or her *4 (“H.B.”) by House Bill was added 1990 THC, ability the State’s to test both explained fact sheet 2433. A Senate impairment, primary substance that causes purpose H.B. was to “make numerous 2433’s capable of Hydroxy-THC, the metabolite conforming changes to the substantive causing impairment. driving provisions relating to the offense of Finally, interpretation would al- 17 liquor drugs.” of under the influence individual who prosecution low the of an Legis.2d Session, S., 39th Staff of Ariz. ingesting legal a substance that drives after (June 1990). at 1 H.B. 2433 Fact Sheet, non-impairing metabolite with a shares a 28-1381(A)(3)’s placement 19 Section proscribed substance. For seroto- within the scheme also demon- substance, nin, legal and the a legislative prevent and strates a intent to metabolite, drug bufotenine share a common impaired driving, simply punish (“5-HIAA”).2 5-hydroxindoleactic See acid having non-impairing metabolite in while a Jorma, al., Karkkainen, Urinary excretion et system. The “its metabolite” one’s (N, dimethyl-5-hydroxy- N— of bufotenin tryptamine) appears “Driving Under the Influence” suspicious is increased in vio- Chapter section of Arizona’s statutes. AR.S. confirmatory study, A 58 lent offenders: begins “Driv- art. 3. And the statute’s title (1995); Moore, Research, Psychiatry 145 ing physical actual control while under the M., al., meta-analysis Todd et A serotonin (emphasis § influence____” AR.S. 28-1381 behavior, 5-HIAA and antisocial metabolite added). Behavior, Aggressive Under “metabolite,” legislative histo- 20 Consistent with this interpretation State’s ry, appeals “[t]he the court of has noted that prosecute could a driver who had 5-HIAA system compelling legitimate state has a interest his or her a matter, or, protecting public from drivers whose supplement serotonin for that ability may by consumption byproduct be whose blood contains 5-HIAA as substances____” Phillips, naturally Because of controlled produced serotonin. P.2d at 710. The court require § the State to Ariz. at Bufotenine, support by this assertion the Dissent at 31. 3401(6)(a)(v), 12-13, hallucinogenic drug generally Boyd, is a KIT cites State v. 29-30 ingested by licking the backs of cane toads. See (App.2001), 142-43 which held Conger, really hallucinogenic Christen Are there 28-1381(A)(3), vagueness, applied, void for 12, 2008), http:// frogs?, (August How Stuff Works subject to more than id. That www.science.howstuffworks.com/zoology/ interpretation, one of which one reasonable reptiles-amphibians/hallucinogenic-frogl.htm unconstitutional, highlights might render it Furthermore, statutes, ambiguity. we "construe plain language that under its 3. The Dissent notes possible, avoid constitutional difficul when 28-1381(A)(3) might interpretation, be consti Gomez, ties.” State v. tutionally challenged applied to a driver who (2006) (citing Hayes v. Cont'l Ins. P.3d Co., (or ingested legal naturally occurring) sub had with an stance that shares a metabolite (1994)). legally ingested marijuana. drug or who Dissent (A)(3) tabolite, explained charge legisla- that the that the do not believe further comprehensive part contemplated penalizing as a DUI enacted ture public legislation “designed protect impairing. metabolite that is not ‘reducing the terrible life and limb’ on toll of find that the intended (quoting Fuenning Supr. our roads.” Id. prohibit driving amount of an Cnty., Maricopa Ct. in resulting from a (1983)). 121, 126 proscribed in 21 This intent is further evi- State, however, essentially contends 28-1381(A)(2), denced AR.S. punishes law that intended a driv- person for a “[i]t vides is unlawful punish under the also influence physical or be in control of a drive actual who it prove ers cannot were under the person has an alcohol [i]f vehicle any impairing influence had substance in of 0.08 or more within two concentration system driving. at the their time We are being hours of in actual persuaded reject argu- the State’s control the vehicle....” Neither the ment “creates a flat ban (A)(3) charge requires that nor or its on impairment. charge prove cre- person’s body ain while or in actual ates a se threshold which a driver is vehicle,” physical control of a even when the presumed to be under influence. See only impairing. metabolite found is not But Cooperman, reject Shilgevorkyan’s argument we likewise (2013) (explaining that under means metabolite” *5 28-1381(A)(2), whether the driver was im- metabolite, drugs pro- because there are paired only pertinent does not matter —the under that multiple have questions are whether the alcohol concentra- secondary impairing metabolites. reading 0.08 and tion exceeded was taken See, e.g., Diazepam, Highway National Traf- driving being within two hours of in actual Administration, Safety http://www.nhtsa. fic vehicle). physical control of the gov/people/injury/research/jobl85drugs/ (last 2014) (ex- (A)(3) diazepam.htm April visited Similarly, enacting plaining diazepam has multiple psy- charge, legislature sought proscribe metabolites). ehoactive driving those who could be from presence illegal drugs body. of in their 24 Because the intended to However, alcohol, general- unlike is no there driving, prevent impaired we hold that the ly applicable can be concentration that identi- §in “metabolite” reference is an impairment fied indicator of for any limited of a substance’s drugs. Phillips, 178Ariz. at at capable causing metabolites that are of im- (explaining drags’ potency cannot be pairment.4 Accordingly, users vi- accurately predicted); Gary see also M. Reis- 1381(A)(1) they if olate drive while 28— al., Mirage Impairing Drug field et The “impaired and, slightest degree,” to the re- Concentration A Rationale Thresholds: for impairment, gardless they violate Driving Zero Tolerance Per Se under the any discovered are with amount of THC or Laws, Drugs Analytical 36 J. Influence impairing body. an their Driv- Toxicology (explaining that multi- cannot be of the ers convicted offense ple phenomena establishing make the task of merely presence based on the of a non-im- impossible). impairing concentrations The may pairing metabolite prior reflect the (A)(3) charge establishes that driver who usage marijuana. positive any impairing tests of an amount legally irrefutably presumed drag is Y. Although legisla- be under influence. rationally penalize Carboxy-

ture could choose The record establishes that THC, impairing only Shilge- amount of an me- metabolite found in light holding Shilgevorkyan’s of our that "its metabolite” dress various constitutional ar- guments. Carboxy-THC, not include we does do not ad- blood, effectively prose- detection vorkyan’s impairment. most enhance does not cause drugged driving. cution appeals’ Accordingly, vacate court of trial dismissal opinion affirm the court’s First, difficulty detecting (A)(3)charge. of the impairment justifies a flat ban. See that, (noting 873 P.2d at at TIMMER, impairment, unlike the case with alcohol dissenting. Justice impairment indicator of “there no useful is one of at least seven states 26 Arizona they are fundamen- because drugged a zero- that combats alcohol”). tally For different from tolerance, per ban on expert in this ease an witness testified its substance or metabolite controlled Hydroxy-THC quickly Carboxy- converts Snow, The Joshua C. Unconstitution- THC, why typically law which is enforcement Me- al Controlled Substance Prosecution of Hydroxy-THC. test blood 4.1-6A-517, Code Utah tabolites Under Thus, driver with 195,197-98 & n. 14 2013 Utah L.Rev. OnLaw may testing may blood the time states, Delaware, ex- One of these Hydroxy-THC in the while have had blood its plicitly excludes inactive metabolites from driving. flat ban ensures that a driver Del.Code tit. se ban. Ann. who had an substance in the (West 2014). 4177(e)(10) Majority prosecuted though even while construing aligns Delaware Arizona with may quickly have into in a manner that con- substance. meaning. respectfully plain its I tradicts Second, permits the flat ban law en- dissent. drugged driving by forcement to detect test- Majority holds 28- “[W]hile urine well as blood. a urine ambiguous because the detecting does test metabolites not conclu- all can mean of a metabolite” sively of the active establish metabolites, metabolites, drug’s some bloodstream, drug in the proscribed parent impairment. can those that out, neither it rule it because the meta- does *6 ac Op. See 11. But “metabolite” has an parent bolite the active will often be cepted meaning, Cyclopedic Taber’s Med see body present simultaneously.” in the State (20th ed.2005), Dictionary ical and noth Hammonds, v. suggests § 28-1381 (App.1998). Imposing flat a legislature that intended to exclude cer on a metabolite ban of a con- statutory types tain of metabolites body trolled substance in the enhances law prohibition. Because “ad ability drugged to detect enforcement’s meaning,” ambigu it mits of one is not (“In seeking protect ing. id.Cf DaimlerChrysler Corp., ous. See Parrot v. citizenry, the legislature life and health of its required forego an cannot be effective (2006); also State see may prophylactic simply measure because it (“We 709 (App.1994) imprecise.”). be somewhat [28-1381(A)(3)] fail see how section Majority contends a flat ban defines, any way. precisely It ambiguous in prosecution permits it is absurd because terms, type unequivocal in of behavior metabolite the driver’s prohibited[.]”). body medically either derives from disagree Majority marijuana with the a 28 I also authorized something have a metabolite with a controlled legislature must intended shares ¶¶ plainly Op. it 28- substance. See 16-17. These isolated different from what stated 1381(A)(3) examples the flat imposing flat ban on do not make ban on the because a body an hundreds ¶¶ Op. absurd. See 14-17. scribed or their metabolites absurd. reasonably Majority Either described could have con- scenario provision unquestionably trigger would would cluded that a zero-tolerance constitutional scrutiny might invalidate 28-

1381(A)(3) applied particular circum- Boyd, 29- stances. Cf ¶¶ 12-13, (App.2001)

(holding “AR.S. facially vague,” applying is not legal prod- a

to a defendant who consumed

uct, GBL, GHB, pro- into substance,

scribed was unconstitutional as

applied “fail[ed] to the defendant because it give adequate him notice that his actions illegal”). might

were And apply if the detected metabolites —active medically

or inactive —emanated from au-

thorized use. See A.R.S.

1381(D) (“A person using pre- practitioner a medical licensed

pursuant chapter to title 13 or 17 is A, guilty violating para- subsection section”).

graph 3 of this This case does not

present either situation. I Majority’s share some of the con- zero-tolerance, imposing

cerns about

ban on with the of non- metabolites in the But be- clearly unambigu-

ously reflects that intended result, appropriate employ it is not

secondary canons of construction to Any

find a meaning. different constitutional

challenges provision to this should be ad- case-by-case

dressed on a basis. I would appeals’ opinion.

affirm the court of *7 LOPEZ, Plaintiff/Appellant,

Manuel A. CITY, Defendant/Appellee.

FOOD

No. 2 CA-CV 2013-0105. Arizona, Appeals

Court of

Division 2.

Feb.

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