Marijuana-DUI Case Tossed by Arizona Supreme Court in Metabolite Ruling

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."

See also:
-Riding High: Arizona's Zero-Tolerance Stance on Pot and Driving
-Marijuana By Itself Not a Significant Factor in Fatal and Injury Crashes in 2012

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."

Click here to read the entire ruling.

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

AZ Supreme Court Rejects DUI Per Se Standard For THC Metabolites

by Paul Armentano, The Daily Chronic

PHOENIX, AZ — The Arizona Supreme Court this week rejected a 1990 state law that classified the presence of inert THC metabolites in blood or urine as a per se traffic safety violation.

Carboxy-THC, the primary metabolite (breakdown product) of THC is not psychoactive. Because it is lipid soluble, the metabolite may remain detectable in blood or urine for periods of time that extend well beyond any suspected period of impairment. As a result, the US National Highway Traffic Safety Administration acknowledges, “It is … currently impossible to predict specific effects based on THC-COOH concentrations.”

Nonetheless, under Arizona law, the mere presence of carboxy THC — absent any evidence of behavioral impairment — was considered to be a criminal violation of the state’s traffic safety laws. Delaware, Georgia, Illinois, Indiana, Iowa, Nevada, Ohio, Oklahoma, Rhode Island, and Utah impose similar statutes.  On Wednesday, the Court struck down the provision.

Writing for the majority, Justice Robert Brutinel opined:

“The State’s interpretation that ‘its metabolite’ includes any byproduct of a drug listed in § 13-3401 found in a driver’s system leads to absurd results. … Most notably, this interpretation would create criminal liability regardless of how long the metabolite remains in the driver’s system or whether it has any impairing effect. For example, at oral argument the State acknowledged that, under its reading of the statute, if a metabolite could be detected five years after ingesting a proscribed drug, a driver who tested positive for trace elements of a non-impairing substance could be prosecuted.”

He added:

“Additionally, this interpretation would criminalize otherwise legal conduct. In 2010, Arizona voters passed the Arizona Medical Marijuana Act (“AMMA”), legalizing marijuana for medicinal purposes. Despite the legality of such use, and because § 28-1381(A)(3) does not require the State to prove that the marijuana was illegally ingested, prosecutors can charge legal users under the (A)(3) provision. Because carboxy-THC can remain in the body for as many as twenty-eight to thirty days after ingestion, the State’s position suggests that a medical-marijuana user could face prosecution for driving any time nearly a month after they had legally ingested marijuana.”

The Court concluded:

“Because the legislature intended to prevent impaired driving, we hold that the ‘metabolite’ reference in § 28-1381(A)(3) is limited to any of a proscribed substance’s metabolites that are capable of causing impairment. Accordingly, … drivers cannot be convicted of the (A)(3) offense based merely on the presence of a non-impairing metabolite that may reflect the prior usage of marijuana.”

The Court did not address provisions in the state’s per se DUI law outlawing the operation of a motor vehicle with any presence of THC in one’s blood even though, according to NHTSA, “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects.”

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