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Interviewer: How long does the carboxy-THC stay in the system?

Brian Sloan: I think some studies put it as long as 45 days. Most people get rid of it within about 30 days, and so people smoke marijuana – sometimes legally, sometimes illegally – but this metabolite of the marijuana, or rather a metabolite of the metabolite of marijuana, can stay in your system for upwards of a month or so. People were getting convicted simply because it was present. Before this Arizona Supreme Court ruling came out, basically, if the case went in front of a jury, the jury was to decide whether this metabolite of the metabolite of marijuana was in a person’s system and whether they was driving. If the person was driving with this metabolite in their system that’s all the prosecutor needed to prove in order to prove that someone was guilty. As ridiculous as it was, people were being found guilty because 30 days earlier they had smoked marijuana.

The Issue of Medical Marijuana

Interviewer: Let’s say my mom has glaucoma and is a medical marijuana user. Sometime last year, if she had received treatment a week prior and then got pulled over by a police officer for some sort of traffic infraction, she could have had a DUI, in other words, right?

Brian Sloan: Well, we are still dealing with medical marijuana issues and the Arizona Supreme Court didn’t really deal with the issue of medical marijuana and whether someone who is taking medical marijuana is excluded from Arizona DUI laws; that is still up in the air. We have not received any sort of precedent setting a ruling on that yet.

Interviewer: Could the metabolites enter the system through secondhand smoke?

Brian Sloan: Absolutely, and people were coming in with carboxy-THC in their system even though they had not consumed or used marijuana themselves. Simply being in a room amongst other people could result in someone having carboxy-THC in their system. Sometimes people could use hemp oil and possibly have carboxy-THC in their system. There are certain types of foods and beverages that contain byproducts of marijuana, and they might have carboxy-THC in their system.

Now we have certain states – Washington and Colorado – where people are allowed to smoke small quantities of marijuana. People can’t leave their metabolites at the border. They’re in Colorado. They smoke marijuana legally. They come down to Arizona 30 days later. They get pulled over for doing a California rolling stop and the officer thinks that the person has droopy eyes and the person admits to smoking marijuana 30 days earlier in Colorado. They test positive for carboxy-THC and they get arrested and convicted of DUI. That used to be something that could happen. Now, after the Arizona Supreme Court has come down with this ruling, it cannot happen.

State ex rel. Montgomery v. Harris

Interviewer: What exactly does the Arizona Supreme Court ruling specify, when did this happen, and how long did it take?

Brian Sloan: It happened in April 2014. It probably took a couple of years. The case was State ex rel. Montgomery v. Harris. It concerned a man by the name of Shilgevorkyan. It was referred to as the Shilgevorkyan case. Basically, the Arizona Supreme Court held that it was never the intent of the legislature in forming DUI laws to include carboxy-THC, which has no impairing effects and cannot influence the way a person is driving, and therefore a person should not be able to be convicted of a DUI simply for having carboxy-THC in their system.

My understanding is that the case started out in misdemeanor courts. I believe the trial judge agreed with the defense that the law never meant for carboxy-THC to be considered a metabolite that could be used against someone in a DUI case. It went to the lower court of appeals, where the lower court of appeals again agreed with the defense attorney. It then went to the court of appeals, where the court of appeals said, “We don’t care; a metabolite is a metabolite, whether it’s impairing or not,” so they overturned the lower court of appeals’ ruling and kept things the way that they had been for decades: that a metabolite, whether it’s impairing or non-impairing, can be used against someone in a DUI case.

Then the Arizona Supreme Court took up the issue and said this was never the legislature’s intent, and you cannot use a non-impairing metabolite to convict someone of a DUI. It was specifically on marijuana, but there is an argument that if someone else has some other type of non-impairing metabolite in their system that those people also cannot be found guilty of a DUI.

Now, this does not mean that if you have the active marijuana in your system or the active marijuana metabolite in your system that you can’t be convicted; you still can. Even if it’s smoked marijuana, it’s arguable and the case law isn’t clear yet, but you can still be convicted. It is solely for those people who have only carboxy-THC in their system; those people cannot be convicted of DUIs. Those people should not be charged. Something that I’m working on now is going back to those folks over the past couple of decades now who have pled guilty or have been found guilty at trial of being convicted for solely having carboxy-THC in their system and getting those cases overturned because the Arizona Supreme Court made it clear in this April 2004 case that the legislature never intended for someone to be convicted of a DUI simply for having a non-impairing metabolite in their system.

By Brian Douglas Sloan

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AZ DUI Defense Lawyer Brian Douglas Sloan
  • 16+ Years SOLELY Focused on DUI Defense
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