Overturning Past Convictions

Interviewer: Is there a statute of limitations, as far as how far back can it go? You’ve mentioned several decades; can it actually go that far back, where someone could get something reversed?

Brian Sloan: Well, this is a new area of the law that doesn’t happen too often. Statute of limitations refers to the amount of time that the prosecutor can bring a case. The way that I’m approaching this is to file a Rule 32, indicating that there has been a change in the law, and there’s been a change in the facts, as well as that it would be a manifest injustice to allow someone to continue to have a conviction on the record for something that the Arizona Supreme Court had held the legislature never intended to be considered a crime.

There is No Statute of Limitations

There really is no limitation. If someone was convicted 20 years ago, there’s a chance that we can overturn it. I’ve been working on the motion. I have about five or six clients now that I’m going to be filing this motion for. I anticipate it is going to be successful. What is still somewhat up in the air is when someone only has the carboxy-THC in their system, sometimes the defense attorney will be able to negotiate a plea agreement where the client pleads guilty to being impaired to the slightest degree of maybe alcohol, instead of pleading guilty to having a marijuana metabolite in their system while driving.

The reason why the defense attorney may have wanted to arrange for that is because someone would lose their license for 90 days for having alcohol in their system, as opposed to a one-year revocation for having any drug or metabolite in their system. The issue is, can we overturn those people who had carboxy-THC but did not plead guilty to having the drug or metabolite in their system while driving under the influence? Can we overturn the conviction of those people who pled to being impaired to the slightest degree by something that we now know cannot cause impairing effects? Science always knew that it couldn’t cause impairing effects, but so far, for the last couple of decades, the courts have held that they don’t care that it can’t cause impairing effects and have used it to convict people of DUI anyway.

Now, with this Arizona Supreme Court ruling, the courts have caught up and said if it’s not impairing, you can’t be convicted of DUI. Even if people had low levels of alcohol – a 0.01, a 0.02, or pretty much anything maybe below 0.06 or 0.07 – I think that we can still go in there and overturn those people’s convictions based on the theory that carboxy-THC is not impairing and that the factual basis was not sufficient for a judge to allow someone to plead guilty to being impaired to the slightest degree by the carboxy-THC or by the alcohol, even though they accepted that plea a long time ago.

Interviewer: If someone maybe 10 years back experienced a DUI conviction, but they were unsure, would they be able to contact you so you can give them an assessment, a consultation, and see if they have a case or not?

Brian Sloan: Absolutely and what we’re trying to figure out is how we can make this worthwhile for people. We don’t want to charge people an arm and a leg for something that we’re now realizing should never have been charged in the first place. It depends on really how much information the client still has. We charge very reasonable fees to file this motion to overturn if the person has or doesn’t have a copy of their plea agreement, a copy of their police reports, and a copy of their blood or urine test results; we need those 3 things. Because the case might be so old, it becomes more difficult to get those things through the prosecutor’s office or through the court system or from the police departments.

Overturning a Past Conviction Has the Potential to Change Lives For the Better

Interviewer: What has the potential to happen if someone had a DUI conviction and you’re able to overturn it? How’s that going to change their life now?

Brian Sloan: Well, what we are going to be asking for is that the person be refunded all the fines and fees that they had to pay for being convicted with a DUI. If they are currently doing a license revocation or a license suspension due to that conviction, we are asking that that be overturned and they have their license provided back to them and reinstated. There’s nothing that we can do about the ignition interlock device. If they were ordered to have an ignition interlock device, that is a contract that the client has with a private entity, so there is nothing that we can do to ask for a refund of that money. We can’t get them refunded for the ignition interlock device, but hopefully, we can at least put an end to it and get it taken out if they still have it in their car. We can hopefully get the conviction off the record, have it overturned, refund all the fines and fees, but, obviously, we can’t give them their time back for the jail that they may have already done or the money and time for the counseling that they may have already done.

Interviewer: This was going to be a positive thing for individuals that have been unjustly convicted because of either it was a bad habit or just wrong time, wrong place.

Brian Sloan: Absolutely; it will change their lives. I have people now that were about to do their day in jail and then this ruling came out and now we have stopped their day in jail. They will hopefully be able to get their license back and hopefully get a refund of the possible thousands of dollars that they’ve paid in fines and fees. I think the Mesa municipal courts are going to be the ones that are hit the hardest, because the prosecutors were adamant about having people plead guilty to DUI if they had any drug or metabolite in their system. Because they were so adamant and were not willing to negotiate this down to being impaired to the slightest degree, they’re the ones that are probably going to be hit hardest by these motions.

Interviewer: Now, say someone had two DUI convictions and one of them was due to marijuana usage. If that one were overturned, would it be able to go back to where it was just a single conviction, so it would look like he only had one DUI?

Brian Sloan: Yes, that’s the purpose. We’re not trying to get the convictions set aside so that it still shows up on someone’s record. We are trying to literally get it overturned. Arizona does not have expungement laws, but we are trying to get these things overturned because they should’ve never been convictions in the first place, and they never should’ve been charged in the first place, according to the Arizona Supreme Court’s decision on what the legislature did.

Now, there is something of a timeliness aspect to this. People should not wait around and think about this because while the Arizona Supreme Court has determined that this was never the legislature’s intention, there is some concern that the legislature may decide, “Actually, that was our intention,” and they may actually write a new law indicating that the presence of carboxy-THC in a person’s system is supposed to be a DUI. That could be a roundabout way for the legislatures to still make this a crime and prevent people from getting their convictions overturned. For right now, we have a good ruling. We want to take advantage of this.

Interviewer: Are there any similar laws in other states, or is this an exclusive Arizona thing?

Brian Sloan: I don’t know. I’d imagine that there are at least some other states out there that are still finding people guilty for marijuana metabolite in their system and the Arizona Supreme Court ruling here, although it isn’t required to be followed in other states, I think other attorneys will realize that this is a good ruling and try to use to it to their benefit in other states.

By Brian Douglas Sloan

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