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Arizona judge says truckers can't face charges for marijuana possession, but issue still unsettled

Ryan Randazzo
Arizona Republic

For the second time this year, a state court has ruled that commercial truckers can't face criminal charges for possessing marijuana on the job thanks to voters approving adult use of marijuana in 2020.

But the issue as a whole is far from settled: State officials and the Maricopa County attorney have said they would still consider taking on such cases.

A Mohave County Superior Court judge this week reversed the guilty verdict of a commercial trucker who was charged with possession of marijuana at a Utah border checkpoint last year.

Like a similar case in Pinal County earlier this year, the judge said state courts can't prosecute drivers for possession following 2020's Proposition 207, the Smart and Safe Arizona Act voters approved legalizing marijuana for adults. 

Driving under the influence still is illegal in Arizona, but the drivers were not accused of or charged with that. Officers cited commercial drivers with possession under a federal statute that prohibits such professionals from having marijuana in their vehicle.

Mohave County Superior Court Judge Eric Gordon said this week it is inappropriate for state courts to prosecute federal laws, and that the driver was not violating state law.

"Whether voters actually understood what they were doing or not, their passage of (Proposition 207) can be said to have been a clear indication that it was their intent to decriminalize the possession of one ounce or less of marijuana in the state of Arizona without any exceptions for professional drivers or anyone else not specifically identified, such as those under 21 years of age," Gordon wrote in his decision.

The ruling reversed the previous decision from Colorado City's Justice of the Peace Barbara Brown. Earlier this year she said in a written order that “Article VI of the U.S. Constitution states that federal law trumps state law. This means that federal law will prevail over state law whenever they are in conflict.”

She said it essentially didn't matter that Arizona voters legalized marijuana possession.

Defense lawyer Thomas Dean appealed her decision for his client in Mohave County. He said only federal prosecutors could pursue violations of the federal regulation. Gordon agreed.

It's unclear whether Mohave County prosecutors will appeal to the Arizona Court of Appeals.

“If they don’t appeal it here my guess is they want to avoid a statewide precedence,” Dean said. “If the Court of Appeals issued a decision it would have statewide precedence.”

That means that without a higher court ruling, other counties can continue to prosecute such cases.

This is the third such case Dean has defended.

One trucker had to plead guilty and pay a $300 fine because he lives out of state and didn't want to return to Arizona for a court appearance, Dean said.

He had better luck with a case in Pinal County, which was dismissed when the judge in that case agreed with Dean's defense that a justice court was not the correct place to prosecute federal rules.

Dean said if prosecutors lean heavily into this legal reasoning, they could effectively shut down the state’s booming cannabis industry. More than 100 dispensaries in Arizona are licensed to grow and sell marijuana, and that product is moved around the state from farms to shops by commercial vehicles, he said.

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ADOT, MCAO may still enforce issue

Despite two verdicts in favor of defendants, the issue likely is not going away. An ADOT spokesman said the most recent decision doesn't influence how that agency will approach such cases, and the Maricopa County Attorney said she would consider prosecuting similar cases.

"This decision in Mohave County Superior Court only relates to this specific case," ADOT spokesman Ryan Harding said Thursday. "Federal law still applies and ADOT hasn't discussed any related policy changes."

Maricopa County Attorney Rachel Mitchell was asked about the issue in June after the Pinal County case was dismissed and while the Mohave case was pending, and said that while she would not prosecute a driver transporting marijuana for a licensed dispensary, she would consider prosecuting commercial drivers who possess marijuana for personal use.

“There is an important distinction to be made between commercial carriers that are hauling it as a product to another location and commercial carriers having it in their possession for personal use," Mitchell said. "Additional safety regulations apply to commercial vehicle operators and there is a good reason why that happens. Yes, I think that is a valid consideration if they are personally using drugs."

Mitchell could not be reached Thursday.

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Worker smelled 'unburned' marijuana

The latest case in Mohave County involves a truck driver who stopped at a weigh station on the Utah border in St. George in June 2021. The case went to the North Rim Justice Court in Colorado City.

An Arizona Department of Transportation worker who previously worked as a DPS officer said he smelled “unburned” marijuana in the truck after following up on a tip from another ADOT worker who said he smelled the drug on the driver. He subsequently asked the driver to hand over his marijuana, and the driver complied, turning over less than 1 ounce of marijuana in a jar, according to the agreed-upon facts of the case.

The ADOT officer then issued the driver a citation for "possession and/or use of a prohibited drug in a commercial motor vehicle." That's not state law. It's under the code of federal regulations and was “incorporated by reference” into the Arizona Administrative Code, and state law says that state troopers can enforce the rules in that code.

The Federal Motor Carrier Safety Regulations prohibit a commercial driver from possessing illegal drugs while working, and the U.S. Drug Enforcement Agency still lists marijuana as a schedule 1 controlled substance.

The driver got a $320 fine from the court, but faced as much as a $750 fine and even jail time.

"It was more the criminal conviction of a driving offense pertaining to drugs which could have ramifications for his commercial drivers license," Dean said.

Both the Department of Transportation and Department of Public Safety have issued citations under the federal rule.

ADOT workers can cite commercial drivers for violations at border checkpoints, and the agency provided data indicating it has enforced the federal statute at least as far back as 2018, before Proposition 207 passed.

ADOT data shows 18 citations issued for suspected violations of the federal rule in 2018, 13 the next year, 28 in 2020, and 51 in 2021. The data includes citations for marijuana as well as other drugs, and it is unclear how many involved a particular drug.

Similar Pinal County case dismissed

The case in Pinal County that was dismissed was similar. On April 18, 2021, a DPS trooper pulled over a decommissioned school bus driving on Interstate 10 because it didn't have proper tags and plates. The driver was the only person in the vehicle.

The trooper, according to court documents, smelled marijuana and found about 6 grams of marijuana, a pipe and a grinder during a search of the vehicle.

The driver was working for a transport company and taking the decommissioned school bus from Texas to California, and he had a commercial driver's license for the work. The bus was destined for an overseas buyer.

DPS cited the driver for a violation of the Federal Motor Carrier Safety Regulations.

"The defendant is not immunized from prosecution because the Smart and Safe Act is not the controlling law here," Deputy Pinal County Attorney Allaura Dabbene wrote in a Nov. 2 brief.

When Western Pinal Justice Court Judge Lyle Riggs ordered briefs on the case, he told the parties to address the question of whether the state could limit a commercial vehicle driver from possessing marijuana for personal use.

On Dec. 20, Riggs dismissed the case, simply referencing "the reasons explained" in Dean's motion for a dismissal.

Reach reporter Ryan Randazzo at ryan.randazzo@arizonarepublic.com or 602-444-4331. Follow him on Twitter @UtilityReporter.

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