A few months ago, the Arizona Supreme Court stated they were not concerned about inactive marijuana metabolites, meaning they were not concerned if someone had been driving with the inactive THC, called Carboxy-THC, so it would not be a DUI if that was found in the person’s system while they were driving and were physically in control of a vehicle. This ruling basically undid decades of thought that simply having the inactive marijuana metabolite in ones system while driving could be a DUI conviction or could lead to a DUI conviction.
Many attorneys, myself included, went back on previous cases where someone only had the inactive marijuana metabolite in their system, and we filed motions with the court to get the case overturned because of the Arizona Supreme Court ruling that came out and stated that what everyone had thought for the last couple of decades was not true.
I had taken on about eight cases, and had six of those cases overturned, arguing that the person should never have been convicted in the first place because someone had pled guilty to something that was not a criminal offense. Some of these cases involved my past clients, whereas some of those were other attorneys’ past clients.
Some other attorney in the Arizona Court of Appeal for division 2, which is the Tucson area, argued that someone’s case should be overturned because they previously pled guilty of a DUI that only involved the inactive marijuana metabolites and the trial judge denied that motion. The defense attorney decided to take it up to the Court of Appeal.
The Court of Appeal recently issued a published opinion saying that even though the Arizona Supreme Court stated inactive marijuana metabolites plus driving or being in actual physical control would not be a DUI, they technically did not overturn any previous case law that even though for decades, attorneys and judges were always under the impression that inactive marijuana plus driving equaled a DUI. There is no case that specifically states that a person could get a DUI by driving with inactive metabolites in their system.
The Arizona Court of Appeal recently stated that when the Arizona Supreme Court ruled a few months earlier that it was not a DUI if the person had inactive metabolites while driving, then it was actually a case of first impression because the Arizona Supreme Court was dealing with it for the first time. They really considered what the definition was for a DUI and whether metabolites truly included inactive as well as active metabolites.
It was the first time they were defining the law as opposed to overturning an old law or overturning old court cases that interpreted the law. It was not a retroactive ruling for people who had previously pled guilty to DUI drugs and who had inactive marijuana metabolite or any other inactive metabolite in their system to be able to come back and say their conviction should be overturned because the law had changed. They basically stated it was people’s own fault if they were not aware of what the law stated, even though that was what everyone thought the law was.
Everyone, including prosecutors, defense lawyers and judges truly believed that that was what the law was for decades, until the Arizona Supreme Court stated it would not be a DUI if someone had an inactive metabolite in their system while driving, and that would only be the case from that point forward. This meant that no new convictions could be made if someone was found with inactive metabolites of marijuana while driving, or really any inactive metabolite while driving, although someone who had pled to it previously would not be able to have their case overturned.
The Court of Appeals case stating that inactive marijuana metabolite would not be retroactively applied is called State v. Werderman.
How Does This Affect Cases That Had Been Dealt With Already?
In theory, for the six or so cases I already had overturned, the prosecutor would be able to retry or ask the court to undo the overturning of those cases. I was in the middle of attempting to overturn one of those cases and even the prosecutor had agreed with me that the case should be overturned, but when this ruling came out, he filed a new response to my motion saying they no longer felt the case should be overturned and they requested to have the defense motion denied.
I spoke to the defense attorney who took the case up to the Court of Appeals, which in my opinion was a mistake in the first place because of something like this. The ruling basically ruined it for everyone but he indicated they were planning on appealing it to the Supreme Court, so there might still be a chance of overturning past convictions where there were only inactive metabolites in the person’s system while driving.
At this point, no other cases that had previously pled guilty to DUI will be overturned based simply on inactive metabolites, so it is unclear what would happen to cases that had been overturned based on a motion that I wrote or based on a motion that another defense attorney wrote explaining to the court that the Arizona Supreme Court case should be retroactively applied and that it was a new change to the law.
Would It Count As A DUI If Someone Had Inactive Metabolites From Now On?
Yes, this would apply for any pending cases from about 6 months back, meaning anything that was still on the system at this point, so none of the cases that were based on just inactive metabolites should go forward.
It would still not be considered a DUI under Arizona law, although the legislator did try to fix that by telling the supreme court that since they understood that the Supreme Court felt that was not what the legislator intended, so the legislator would make it perfectly clear that was what was actually intended, and that they wanted people convicted of DUI for having an inactive metabolite in their system while driving, but it is my understanding that the votes were not there.
How Does Someone React To Inactive Metabolites In Their System?
Inactive metabolites do not cause any impairment at all, because they are basically just a byproduct of something that may have caused impairment in the first place. In the case of marijuana, inactive marijuana metabolites called “Carboxy-THC” would stay in the person’s system for upwards of 30 or 45 days although the impairing effects of the THC that someone would have had to have consumed in order to have the Carboxy-THC in the system would have run out weeks or even a month and a half earlier.
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