Kirsten v. Arizona Dept. of Transp., No. 1 CA-CV 24-0092 (App. Div. I, October 1, 2024) (J. Jacobs) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2024/No.%201%20CA-CV%2024-0092%20KIRSTEN%20v%20ADOTMVD.pdf
ABSENCE PROOF OF IMPAIRMENT, A.R.S. § 36-2852(A)(1) PROHIBITS SUSPENSION OF DRIVER'S LICENSE BASED UPON BLOOD TEST ESTABLISHING THC CONTENT
Aaron Kirsten's driver's license was suspended by the Department of Transportation [ADOT] when a blood test following a traffic stop for speeding revealed the presence of Tetrahydrocannabinol [THC] in Kirsten's blood. The investigating officer testified to bloodshot, watery eyes, slurred speech and unsteady feet and that Kirsten refused a field sobriety test. While Kirsten's blood alcohol content [BAC] of 0.083 was over the presumption of alcohol intoxication, after arrest for driving under the influence A.R.S. § 28-1381, he consented to a blood draw which demonstrated only 0.063 BAC, below the presumption. ADOT suspended his license for 90 days based upon the THC blood content that turned up in the same blood draw. A.R.S. § 28-1385(M)(1) & (M)(3)(b). Kirsten appealed. An administrative law judge and ultimately the Coconino County Superior Court sustained the suspension finding A.R.S. § 28-1385(M) allows ADOT to suspend a license based upon any amount of THC turning up in a blood draw even in the absence of proof of impairment and despite A.R.S. § 36-2852. The Arizona Court of Appeals vacated and remanded.
As a result of passage of Proposition 207, A.R.S. § 36-2852(A) was enacted providing that “'notwithstanding any other law,' which includes A.R.S. § 28-1385(M), the State cannot ‘abrogat[e] or limit[] any right or privilege conferred or protected by the laws of this state' . . . . [and] A.R.S. § 36-2851(3) [provides] that the State may “impos[e] penalties for driving . . . while impaired to even the slightest degree by marijuana.” Hence, ADOT cannot suspend a driver's license based solely upon the existence of THC in the blood. Impairment must also be proven.
ADOT waived the alternative argument that Kirsten's license should be suspended based upon the fact there was other evidence of impairment, by not raising it until appeal.
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