- About Us
- Get Involved
- Our Projects
- Support Us
- Our Building
by Ray Stern
Arizonans no longer risk getting a DUI for driving with an inactive metabolite of marijuana in their blood following a ruling by the state's high court.
The Arizona Supreme Court announced this morning that it was reaffirming the trial court's decision to dump the case of Hrach Shilgevorkyan, who was prosecuted for driving while impaired after a blood test revealed the presence of marijuana. New Times covered the case and overall issue in detail in our May 2013 article "Riding High."
Here's what the state's High Court had to say about the case in its 4-1 decision:
"We are not persuaded and reject the State's argument that [the law] 'creates a flat ban on the presence of any drug or its metabolite in a person's body while driving or in actual physical control of a vehicle,' even when the only metabolite found is not impairing . . .
"Because the legislature intended to prevent impaired driving, we hold that the 'metabolite' reference in [the law] is limited to any of a proscribed substance's metabolites that are capable of causing impairment . . . Drivers cannot be convicted of the . . . offense based merely on the presence of a non-impairing metabolite that may reflect the prior usage of marijuana."
The opinion follows a ruling last year by the Arizona Court of Appeals that upheld the zero-tolerance law. Studies show the inactive metabolite carboxy-THC can be detected in the blood of some drivers for a few weeks after their last toke.
The law's strict ban on metabolites meant that unimpaired drivers with any trace of cannabis in their systems -- including some of the state's 48,000 registered medical-marijuana users -- were technically breaking the state's DUI laws just by getting behind the wheel. The new ruling ends potential abuse of the law by zealous prosecutors.
Motorists caught driving under the influence of marijuana can still be prosecuted for a DUI if a blood test reveals the presence of active THC, the main psychoactive ingredient in the plant, or the metabolite hydroxy THC, a compound broken down by the body that's believed to retain an inebriating effect. The High Court emphasized in its ruling that any "active" metabolite for any drug, not just marijuana, could still be used by prosecutors as evidence of DUI.
Justice Ann Timmer disagreed with the majority, implying the court was writing law from the bench: "I share some of the Majority's concerns about imposing a zero-tolerance, per se ban on driving with the presence of non-impairing metabolites in the body. But because [DUI law] clearly and unambiguously reflects that the legislature intended this result, it is not appropriate to employ secondary canons of statutory construction to find a different meaning. Any constitutional challenges to this provision should be addressed on a case-by-case basis."
(Added after publication):
Frequent marijuana users can also test positive for active THC days or even weeks after their last use, meaning that it's still possible to get a "sober" DUI for marijuana even with this ruling. Laws in Colorado and Washington, which have legalized the use of marijuana for adults 21 and older, ban users from operating motor vehicles with five or more nanograms of active THC in their blood.
UPDATE 1pm -- Written statement on the ruling by Maricopa County Attorney Bill Montgomery:
"The only way the Court could reach its holding was by creating ambiguity where it did not exist in order to engage in interpretive jujitsu and impede on a function specifically left to the legislature: changing a clearly worded statute to accommodate changes in circumstances if called for. A healthy respect for our tripartite system of state government sometimes means restraint by one branch of government where invited to act and resisting the temptation to do so. By acting as it has, our State Supreme Court contributes to citizen cynicism particularly when it involves the whys and wherefores of drafting and passing legislation. Why should citizens work through our republican form of government and petition their duly elected legislators for statutory change when they can take a shot at only having to persuade just three Justices? Instead, the Court should have directed relief to the appropriate branch of government: the legislature."
We'll make one comment (in the form of a question) about Montgomery's statement: If this ruling contributes to "citizen cynicism" of government, as Montgomery asserts, how much citizen cynicism was created by keeping a law on the books that allowed sober motorists to be convicted of a DUI?
©2014 Phoenix New Times, LLC