By Howard Fischer
Capitol Media Services
PHOENIX -- Julie Willoughby says state legislators shouldn't be making laws while on drugs for the same reason they shouldn't be driving.
She says they make bad decisions.
So the first-time Republican representative from Chandler has introduced a proposal to require all members of the Legislature to submit to random drug testing at the discretion of the Senate president or House speaker. And that would apply any time lawmakers are in session.
"A drug has the power of inhibiting your reasoning ability, to make you paranoid, to make you see things that aren't there, to make you hallucinate,'' Willoughby told Capitol Media Services. "And that could be severe when you're talking about the job that we do as far as legislating new laws and defending different things.''
Consider, she said, drunk driving.
"You see someone no longer being able to have the correct response time to things,'' Willoughby said.
Yet Willoughby's measure does not allow lawmakers to be tested for their blood-alcohol content to see if they've perhaps had one too many drinks at lunch before they come to the floor to vote. What justifies that exemption, she said, is the technology involved.
"To test alcohol without a breathalyzer which you need a blood draw which would require a lot more work to obtain the sample than a urine blood stream,'' Willoughby said.
Anyway, she said, the key is testing for non-prescription drugs in the lawmaker's system.
That, however, fails to account for marijuana which, due to a 2020 public vote, essentially has the same legal status as alcohol. While there are limits in the amount any person can possess at any one time, there is nothing illegal about the use of the drug, whether for someone who is self-medicating for a condition or simply using it for recreational purposes.
But Willoughby said she thinks it also should be something looked for in those random drug tests.
"Though it's a legal drug, it's not legal to use all the time,'' she said, citing someone who might be operating as a health care professional. "That would kind of be the same umbrella in my thought process for this drug.''
Still, that presents a host of different problems.
The test for marijuana involves looking for metabolites of the drug, chemicals left behind as the drugs break down in the body. And they can remain long after the effects of the psychoactive elements are gone.
More to the point, even the Arizona Supreme Court has ruled, in drunk driving cases, that the mere presence of metabolites is insufficient to sustain a drunk-driving conviction. Instead, they concluded, a prosecutor must show they actually were impaired.
Willoughby said she doesn't see that as a problem.
"The bill is more allowing for the ability to do drug testing,'' she said. "It's not calling for what would happen after there's a positive drug screen.''
Instead, the results would be referred to the Ethics Committee which would determine if the lawmaker was doing something he or she should not be doing.
Willoughby said the same logic would apply for someone who tests positive for a drug for which they have a prescription, whether or not it is the kind that could impair someone's judgment: the Ethics Committee would decide.
The results of the drug tests would become public only after the Ethics Committee reviewed the results and its members, after reviewing the situation, voted to require the lawmaker to respond. That, said Willoughby, is the point that everyone would know the results.
And what of "probable cause,'' having some reason to test someone?
"That's a fair question,'' Willoughby said. In fact, she acknowledged, allowing the Senate president or House speaker to decide who to test means it could be "weaponized against somebody you don't like.''
But Willoughby said she is relying on the discretion of those leaders to use the power only when they see someone acting "abnormally,'' perhaps even in an "uninhibited'' manner.
That question of what sort of unusual behavior might trigger a demand for a drug test bemused Sen. John Kavanagh, a Fountain Hills Republican who has been in the Legislature since 2007.
"Many of our legislators are capable of coming up with weird bills without the use of drugs,'' he said. Nor does Kavanagh believe drug testing is necessary, particularly as the legislation exempts alcohol.
"I can't remember of all my time there of any lawmaker that was even suspected of doing drugs,'' he said.
"There might have been a few instances of alcohol intoxication on the night the budget was done,'' Kavanagh continued. "But there is no history of any kind of abuse like that.''
That's also the assessment of former House Speaker Rusty Bowers whose legislative history goes back to 1997. He said he had not in that time seen people who appeared to be on drugs.
"But I knew some were absolutely under the influence of alcohol,'' he said.
And even if there is a lawmaker who actually is drug impaired, Bowers dismissed the possibility that a he or she could do real harm to the democratic and deliberative process. Consider the fact that it takes 31 votes to get a measure approved by the House.
"I don't think, unless they got 30 plus one all toking at once, that it would have some wave of influence,'' he quipped.
How far legislative leadership is prepared to let her go with the measure remains unclear.
House Speaker Ben Toma, who would gain the power to demand random drug tests under her bill, has yet to assign it to a committee for a hearing.
Willoughby acknowledged her bill may not be quite ready for prime time. But Willoughby said that in introducing and pursing it, she is keeping her commitment to constituents who first raised the issue about drug-impaired lawmakers with her, prompting her to craft the legislation.
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