Interviewer: Since this occurred, have there been any new DUI cases where this new law has been implemented?
Brian Sloan: There really can’t be any new cases. There were some pending in the court system and they’re just getting dismissed. I would say the prosecutor’s dismissing them without prejudice, which is a little bothersome. Without prejudice means that they can technically recharge it within usually about six months or a year from the date of the arrest. Maybe they are aware that while they are forced to dismiss the case now, if the legislature acts and says that, “Oh, no, we meant for having the inactive marijuana metabolite in someone’s system to be a DUI charge and we are making the law apply retroactively to those people who previously had it in their system,” and that might lead to a fight.
Then we get into issues of what’s called ex-post facto laws, which is basically saying that you are making something a crime or making something illegal and trying to apply it to past acts when people weren’t aware that it was illegal. It can lead to a big fight. This is probably going to be a big fight for a couple of months and then things will die down when everyone sees where the chips are falling, what the prosecutor’s arguments are, and how the judges are ruling.
Interviewer: How long could this process possibly take?
Brian Sloan: It will still take a little bit of time. It may take months. I’m still working on the motion. Once I’m able to finish the motion, then we can write it up for the client that calls me and submit it to the prosecutor in the courts. The prosecutor has 10 days to respond. We may have to have a hearing. Again, we’re talking about a new frontier here. The judges don’t necessarily know what to do about this. The prosecutors don’t necessarily know what to do about this. This may, at some point, become a rubber stamp process, but in the meantime, defense attorneys may have to fight this. It depends on where the prosecutors stand. If they feel that, based on the new Arizona Supreme Court holding, that people should have their convictions overturned and they decide not to fight us, or they might decide to try to fight us on this, and all of a sudden, we’re just having hearings in all these different courts all over the county.
Potential Barriers & Complications
Interviewer: What are some things that I would have to prepare for if I present my case to you? What are some things that might become barriers to getting overturned, or what are some other factors that were, I guess, used against me at the time?
Brian Sloan: It depends; it depends on if there was alcohol as well as the carboxy-THC in the person’s system. It can depend on how the driving was, whether there was an accident, and what statements the person made. It’s not going to hurt the person if they admitted to using marijuana, even if they admitted to using marijuana recreationally or legally. Mr. Shilgevorkyan said that he used marijuana; that’s not going to be the issue. What can be problematic, possibly, is if someone admitted to being impaired, rated themselves a number above zero on the scale of 0 to 10 as to how impaired they felt. These are factors can come into play, which is why we want the police report in addition to the blood test results or urine test results and the plea agreement.
Interviewer: In regard to these kinds of cases, what sorts of difficulties do you perceive yourself having?
Brian Sloan: I think it is going to be about tracking down those three items. A lot of people, once the conviction is over, will just get rid of the paperwork. People move. Sometimes people are represented by attorneys that don’t provide them the police reports or the test results. Just the passage of time can be the enemy.
When we’re talking about blood test results or urine test results, sometimes the only way to get a copy of that if the client doesn’t have a copy of it is to either go to their old attorney or to try and go to the prosecutor and see if we can get it out of their file, because it’s not something that the judge of the court would have in their file, and it’s not something that we would normally just be able to get as part of a request for a police report. That’s why it costs more to actually fight this when the person does not have that plea agreement or their police report or their blood or urine test results, but it is still something that is worthwhile to act on now and not wait before it becomes too late.
Interviewer: It’s a little bit of a race here.
Brian Sloan: I think it is. I think there’s a potential that things can fall apart later on. I think that the Arizona Supreme Court has given us a fantastic opportunity now and people who are convicted of crimes should never have been charged because they weren’t really crimes need to take advantage of this. People need to realize that this is an option now, and I don’t want to really give my thoughts on where the problems are going to be, although I can think what prosecutors might argue, but it’s not something that I necessarily want to say in an interview, because I don’t want to give prosecutors the heads up on what their possible arguments might be.
Interviewer: What would happen if I go talk to you, we get it overturned, but then there are some significant changes in the law that end up happening? Would I have to go back to my old criminal record?
Brian Sloan: Well, either you’re going to stick with your criminal record as it is, or we’re going to get it overturned. This isn’t something where a client really needs to come in and discuss things with me. The only thing that we would need to do is just talk on the phone, and I find out if the person has a copy of their plea agreement, the police report, and the blood or urine test results. This isn’t like a pending DUI case where it’s important to meet with the client, find out a little bit about what happened, take down notes, explain how the system works. This is a matter of, “Give me the information and let me do what I need to do, and I’m going to try and get it overturned.”