The Arizona Supreme Court this week rejected a 1990 state law that classified the presence of inert THC metabolites in blood or urine as a per se traffic safety violation.
Carboxy-THC, the primary metabolite (breakdown product) of THC is not psychoactive. Because it is lipid soluble, the metabolite may remain detectable in blood or urine for periods of time that extend well beyond any suspected period of impairment. As a result, the US National Highway Traffic Safety Administration acknowledges, “It is … currently impossible to predict specific effects based on THC-COOH concentrations.”
Nonetheless, under Arizona law, the mere presence of carboxy THC — absent any evidence of behavioral impairment — was considered to be a criminal violation of the state’s traffic safety laws. (Delaware, Georgia, Illinois, Indiana, Iowa, Nevada, Ohio, Oklahoma, Rhode Island, and Utah impose similar statutes.) On Wednesday, the Court struck down the provision.
Writing for the majority, Justice Robert Brutinel opined: “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.”
He added: “Additionally, this interpretation would criminalize otherwise legal conduct. In 2010, Arizona voters passed the Arizona Medical Marijuana Act (“AMMA”), legalizing marijuana for medicinal purposes. Despite the legality of such use, and because § 28-1381(A)(3) does not require the State to prove that the marijuana was illegally ingested, prosecutors can charge legal users under the (A)(3) provision. Because carboxy-THC can remain in the body for as many as twenty-eight to thirty days after ingestion, the State’s position suggests that a medical-marijuana user could face prosecution for driving any time nearly a month after they had legally ingested marijuana.”
The 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.”
The Court did not address provisions in the state’s per se DUI law outlawing the operation of a motor vehicle with any presence of THC in one’s blood even though, according to NHTSA, “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects.”
Alaska voters will decide this November on a proposed initiative to regulate the production and retail sale of cannabis to adults.
Although the measure was initially scheduled to go before voters during the state’s primary election in August, state officials this week decided to push back the vote to the November general election. The postponement was required because lawmakers failed to adjourn this year’s legislative session within 90 days, the standard time allotted under state rules. Under Alaska law, ballot initiatives must go to voters no less than 120 days after the end of that year’s legislative session.
If enacted by voters this November, the ballot measure would legalize the adult possession of up to one ounce of cannabis as well as the cultivation of up to six-plants (three flowering) for personal consumption. It would also allow for the establishment of licensed, commercial cannabis production and retail sales of marijuana and marijuana-infused products to those over the age of 21. Commercial production and retail sales of cannabis would be subject to taxation, but no taxes would be imposed upon those who choose to engage in non-commercial activities (e.g., growing small quantities of marijuana for personal use and/or engaging in not-for-profit transfers of limited quantities of cannabis.) Public consumption of cannabis would be subject to a civil fine.
The measure neither amends the state’s existing medical marijuana law, which was approved by voters in 1998, nor does it diminish any privacy rights established by the state’s Supreme Court in its 1975 ruling Ravin v State.
Under present state law, the possession of marijuana not in one’s residence is classified as a criminal misdemeanor punishable by up to 90-days in jail and a $2,000 fine.
According to the results of a statewide Public Policy Polling survey, released in February, 55 percent of registered voters “think (that) marijuana should be legally allowed for recreational use, that stores should be allowed to sell it, and that its sales should be taxed and regulated similarly to alcohol.” Only 39 percent of respondents oppose the idea. The survey possesses a margin of error of +/- 3.4 percent.
If enacted, Alaska will be the third US state to regulate the legal retail production and sale of cannabis to adults.
Also this November, voters in Florida will decide on a constitutional amendment to allow for the physician-approved use and retail distribution of cannabis for medical purposes.
Democrat Gov. Martin O’Malley today signed two separate pieces of legislation reforming the state’s marijuana laws.
Senate Bill 364 amends existing penalties for marijuana possession offenses involving ten grams or less from a criminal misdemeanor (presently punishable by arrest, up to 90 days in jail, a $500 fine, and a criminal record) to a non-arrestable, non-criminal fine-only offense ($100 fine for first-time offenders, $250 for second-time offenders). The new depenalization law takes effect on October 1, 2014.
House Bill 881 seeks to provide for the state-licensed production and dispensing of marijuana to qualified patients who possess a written certification from their physician. The new law will take effect on June 1, 2014, at which time the state shall establish a commission to draft rules and regulations overseeing the production and distribution of medical marijuana. However, the licensing program is not anticipated to be up and running until 2015.
Maryland is the 18th state to depenalize minor marijuana possession offenses to a non-arrestable offense. It is the 21st state to allow for the doctor-recommended access to medicinal cannabis.
Lawmakers in Alabama and Utah recently approved legislation seeking to authorize the physician-supervised use of varieties of cannabis and/or extracts high in the non-psychotropic cannabinoid cannabidiol (CBD). Both measures, which I previously summarized as ‘largely unworkable,‘ have now been signed into law.
In recent days, lawmakers in three additional states — Kentucky, Mississippi, and Wisconsin — have similarly signed off on CBD-explicit legislation. These measures are now awaiting signatures from each states’ respective Governors.
Similar to Alabama’s SB 174 (aka ‘Carley’s Law), which only permits the use of CBD by prescription during the course of an FDA-approved clinical trial, the pending Kentucky and Wisconsin bills may also be classified as ‘research-centric’ measures. Kentucky’s SB 124 permits physicians “practicing at a hospital or associated clinic affiliated with a Kentucky public university” to “dispense” cannabidiol during the course of an FDA-approved clinical trial. Wisconsin’s AB 726 similarly limits those who may legally dispense CBD to only include those physicians who have obtained an FDA-issued investigational drug permit to prescribe it. In Tennessee, lawmakers are also close to finalizing similar language (included in HB 2461 and SB 2531) that seeks to allow university clinical researchers to “manufacture” and “dispense” high-CBD cannabis oil “as part of a clinical research study on the treatment of intractable seizures.” (By contrast, separate, broader medical cannabis measures seeking to authorize the use of the whole plant failed this year in all three states.)
As I’ve previously written here and here, it is unlikely that specific changes in state law will stimulate these type of proposed clinical trials from taking place in these states any time soon. Because CBD is acknowledged by federal regulators to be classified as a schedule I prohibited substance, multiple federal agencies — including the FDA, DEA, NIDA (US National Institute of Drug Abuse), and PHS (Public Health Service) must all sign off on any clinical investigation of the cannabinoid — a process that typically takes several years. A keyword search of FDA-approved clinical trials using the terms “cannabidiol” and “United States” yields fewer than ten ongoing human trials involving CBD — less than half of which are assessing its potential therapeutic application. (Two additional safety trials assessing the use of GW Pharmaceutical’s patented high-CBD formulation Epidiolex in children with severe epilepsy are also ongoing.)
Unlike the above-mentioned measures, Mississippi’s HB 1231, does not seek to encourage state-sponsored clinical trials. Rather, the measure exempts specific high-CBD formulated oils “that contain more than fifteen percent cannabidiol [and] … no more than one-half of one percent of tetrahydrocannabinol” from the state’s definition of a schedule I prohibited substance. However, like Utah’s HB 105 (aka ‘Charlee’s Law), Mississippi’s pending law does not provide guidance as to where patients could legally obtain such extracts. Though such high-CBD products are presently available in a limited number of medical cannabis states (such as in California and Colorado), these extracts are typically only available to in-state residents who possess authorization from a physician licensed to practice in that state. (Although Colorado state law also allows for a recreational cannabis market, which may be legally accessed by out-of-state residents, at present time such high-CBD concentrates are seldom available at retail outlets.)
Additional cannabidiol-specific measures also remain pending in Florida and South Carolina, among other states. NORML will report on these measures as they progress and we will continue to express caution in regards to their practical utility for those patients who require immediate access to whole-plant cannabis and its variety of naturally-occurring compounds.
The legislation now goes to Republican Gov. Bill Haslam for his signature.
The measures reclassify cannabis possessing less than 0.3 percent THC as an industrial crop rather than a controlled substance. The legislation calls on the state Department of Agriculture to develop rules and regulations governing the licensed production of industrial hemp by Tennessee farmers. Regulators have up to 120 days following the bill’s passage to enact these licensing guidelines.
According to the Congressional Resource Service, the US is the only developed nation that fails to cultivate industrial hemp as an economic crop. However, in February, members of Congress for the first time approved language in the omnibus federal Farm Bill allowing for the cultivation of industrial hemp in agricultural pilot programs in states that already permit the growth and cultivation of the plant. Ten additional states — California, Colorado, Kentucky, Maine, Montana, North Dakota, Oregon, Vermont, Washington, and West Virginia — have enacted legislation allowing for industrial hemp research and/or reclassifying the plant as an agricultural commodity under state law.