Possession of marijuana is legal in Arizona, but some rural counties are using federal law to target it
Corrections & Clarifications: A previous version of this article misquoted Pinal County Attorney Kent Volkmer and was updated to accurately reflect his comments.
State law-enforcement officers and prosecutors in rural Arizona have targeted commercial truck drivers for marijuana possession even though it's legal for anyone 21 or older to have the drug.
In at least three cases, one in Pinal County and two in Mohave County, people driving commercial vehicles were cited for possession — not driving under the influence — of marijuana.
In 2020, nearly 2 million Arizona voters approved Proposition 207 to legalize marijuana possession for people 21 and older. It passed with 60% of voters in support.
But prosecutors are targeting truckers because of federal law that prohibits professional drivers from possessing drugs, and marijuana remains illegal under federal law.
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, according to his defense attorney, Thomas Dean.
Dean had better luck with a case in Pinal County, which was dismissed. But he said law enforcement and prosecutors are seemingly seeking pathways to prosecute people for simple possession despite the Smart and Safe Arizona Act.
The third case is pending in Mohave County.
“In my view, he hasn’t committed a crime in the state of Arizona,” Dean said of his client, who was cited for possessing less than an ounce of marijuana.
One of Dean’s concerns is that if prosecutors want to 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.
ADOT: Commercial drivers different
The case still pending in Mohave County involves a truck driver who stopped at a weigh station on the Utah border in St. George last June.
The case is in the North Rim Justice Court in Colorado City, a town that has had a history of troubles connected to a polygamist church, including a 2016 verdict that the town discriminated against people who were not members of the church.
The county prosecutor and defense have agreed on a set of facts in the case.
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.
Both the Department of Transportation and Department of Public Safety have issued citations under the federal rule, 49 C.F.R. § 392.4a.
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.
"As mandated by (Arizona Revised Statute) 28-5204, Arizona continually adopts the Federal Motor Carrier Safety Administration regulations for enforcement on all commercial vehicles," ADOT spokesman Ryan Harding said via email.
"Commercial drivers are in a different category than regular drivers. Much like how airline pilots and nurses aren’t allowed to drink alcohol for a certain period of time before going on duty, commercial drivers have stricter standards for drug and alcohol possession, much less use, while on duty given the nature of their job and size and weight of the vehicles they operate."
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. Already this year ADOT has issued 27 citations under the rule.
"You’ll note an uptick in the number of citations after 2020, but there are other reasonable explanations for this besides a change in tactics by officers," Harding said. "With the legalization of marijuana in some neighboring states, it’s been observed that more commercial drivers have possession of marijuana when they come through Arizona."
Most of ADOT's citations for the federal rule were at the St. George checkpoint and another called Topock in Mohave County on the California border.
Judge defers to federal law on pot
Dean said if law enforcement officers want to charge people with violating a federal rule, they need to prosecute them in federal court.
“If this were in Federal District Court and he was being prosecuted by the federal District Attorney’s Office, my position on this would be different,” Dean said. “But the DA’s office is there to deal with big cartel activity. There is zero chance the DA’s office will start filing these charges, and they know that.”
Dean tried to get the case dismissed because, he said, a state court is not the proper venue for federal laws. He said that it is the job of federal prosecutors and U.S. District Courts to prosecute such crimes.
“That is what preemption means,” Dean wrote in a court motion. “For example, the federal government has preempted the area of immigration law. A state police officer cannot, however, arrest a person for being in violation of federal immigration law … . Nor can a state court convict a person for a criminal violation of a federal immigration law or regulation. The same is true here.”
Colorado City's Justice of the Peace Barbara Brown disagreed. 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.”
The judge said it essentially doesn’t matter that Arizona voters legalized marijuana possession.
“The court finds that the Smart and Safe Act (Prop. 207) does not prohibit the enforcement of (the federal regulation) which forbids the use, possession, or being under the influence by commercial driver license holders,” Brown wrote in her order denying the motion to dismiss the case.
Dean also tried to have the evidence of the marijuana suppressed, since Proposition 207 also stated that the mere scent of marijuana was not enough to warrant a search.
But because the judge sees this as a case of federal law, she also rejected that defense.
"The judge said that since the trooper was enforcing federal law and 'federal law trumps state law,' then it was fine for him to search based solely on the odor of marijuana," Dean said.
Now the driver must attend a pre-trial conference Wednesday where he is expected to agree to waive his right to a trial, and Brown subsequently will issue a judgment.
Because the defense attorney and prosecutor agree on the basic facts, including that the driver was in possession of a small amount of marijuana, there’s not much to debate at a trial.
Mohave County Attorney Matthew Smith declined to answer questions from The Arizona Republic about the case, citing the pending verdict.
Dean said he expects the same $300 fine his other client paid, but the driver could be fined as much as $750 or even face jail time, he said.
“You never know,” Dean said.
He expects a guilty verdict within weeks, and said he plans to appeal to the Mohave County Superior Court in Kingman, not only because the conviction could affect his client's occupation but because of the precedent the case can set for the county.
DPS pressed Pinal County to take case
The case in Pinal County was similar, though the judge in that case agreed with the defense attorney that a justice court was not the correct place to prosecute federal rules and dismissed the case.
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.
Like in Mohave County, the driver was cited for a violation of the Federal Motor Carrier Safety Regulations.
And like in Mohave, Dean represented the driver and argued in court briefings that the state court could not address the federal law, and even if it did, Proposition 207 took precedence.
Pinal County Attorney Kent Volkmer said he would not have pursued the case, but DPS filed it directly to the court and urged him to prosecute it as an experiment.
"This was not an attempt to undermine the will of the people," Volkmer said of the county's work on the case.
Volkmer said he thought the case was a lost cause, and that his office spoke to the DPS trooper who issued the citation, Matthew Auerbach.
"He said, 'I think I'm right, just litigate it and let a judge make the decision,'" Volkmer said. "We agreed there were a lot of novel questions."
DPS did not immediately respond to a request for comment on the case, nor indicate whether the agency would continue to write citations for violating the rule after losing the Pinal County case.
The prosecutor argued the federal law was enforceable regardless of what voters approved with Proposition 207.
"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.
He also told the parties to avoid hyperbole. He specifically said he didn't agree that dismissing the case would open the door to school bus drivers using marijuana on the job, nor did he think a conviction would threaten the state's massive marijuana industry because it would prevent dispensaries from transporting marijuana from farm to shop.
On Dec. 20, Riggs dismissed the case, simply referencing "the reasons explained" in Dean's motion for a dismissal.
Volkmer said he would not appeal, and would not prosecute any similar cases that arise in his county.
"We have a ruling," he said. "The judge's logic made sense."
Reach reporter Ryan Randazzo at firstname.lastname@example.org or 602-444-4331. Follow him on Twitter @UtilityReporter.