Weeks-old traces of marijuana enough for DUI
PHOENIX – Operating a motor vehicle weeks after smoking marijuana increases the chances of being charged with driving while intoxicated in Arizona.
On Tuesday, a prosecutor argued that there is no issue with charging a motor vehicle driver who used marijuana a month earlier with driving while drugged.
The legislation of Arizona permits motor vehicle drivers to be charged with driving under the influence if a blood sample shows the presence of even a small amount of Carboxy-THC, a secondary metabolite of marijuana. Carboxy-THC can remain in the human body for weeks after someone smokes pot but it cannot affect the thinking ability of a person. Under the stringent state law in Arizona, any person who smoked pot even one month earlier can be locked up or charged for that.
Michael Alarid, an Arizona attorney is currently trying to have the state re-consider a 2010 driving under the influence conviction against one of his clients, who according to him was not driving while intoxicated when the incident happened but had trace amounts of THC in his system. The charge was dismissed by the trial judge but the attorney is concerned about a Court of Appeals decision mandating that laws on impaired driving “must be interpreted broadly”. He told a local CBS affiliate, “The courts are supposed to interpret statutes as to avoid absurd results. It’s possible in Arizona to be convicted of DUI when, in fact, a blood test proves a person is not impaired”. He also said that if he becomes successful in doing this, he will win by convincing the state’s top justices to change a Court of Appeals decision from the 1990s when “marijuana was a completely illicit substance”. Currently in Arizona and many other states, medical marijuana is legal.
On Tuesday when Alarid attempted to make his case in court, a question was asked from a state prosecutor by Chief Justice Rebecca Berch that how the law will be used if future breakthroughs will permit investigators to discover even more miniscule traces of Carboxy-THC. Chief Justice Berch asked Deputy Maricopa County Attorney Susan Luder, “Let’s assume that scientific testing develops and you can find Carboxy-THC remaining in the system for a year, does that have any effect on your position here today? Let’s now assume that its five years that you can test THC levels — Carboxy-THC remaining in the system, does there comes a point where the statute lacks a rational basis?”
Arizona Daily Star reported that Luder said she understands the arguments about why it may not be fair to charge any person 30 days after he/she smoked pot but Berch’s case is “up to the Legislature to decide”. During the hearing, Justice Robert Brutinel asked, “Where do you draw the line on when the metabolite’s no longer illegal?” and Luder replied, “It’s hard to say”.
Alarid said that ruling effectively bans driving by a person with even a small amount of Carboxy-THC in the body, “which is an absurd result”. Justice Scott Bales said the fact stays that a person who tests positive for marijuana had used it and that there is no method for police to “extrapolate backwards” to determine exactly when that individual was impaired. He asked, “If we don’t know that, wouldn’t it be reasonable for the Legislature to prohibit driving while you have Carboxy-THC in your system?” He said that many individuals who test positive for Carboxy-THC never drove a motor vehicle when they were under the influence but he said, “If it’s a choice between erring on over-inclusive or under-inclusive, why isn’t that … a policy question for the Legislature rather than one for us?”
Alarid said that the only problem is whether there is specific proof of impairment while any person is driving which police could determine. A ban on driving a motor vehicle with Carboxy-THC present in the blood is not linked to the aim of the statute which is to make the public safe from impaired drivers.
According to the high court, pot smokers pulled over weeks after smoking marijuana can lose their driver’s license for 12 months if they are proven to have Carboxy-THC in their system.
The court ruling has an impact on whether any of the 40,000 Arizonans who use legal medical marijuana will not be given the permission of driving a motor vehicle, given how long metabolite stays in the body. It also gives a chance to prove a DUI offender who drives and has smoked marijuana in the last 30 days, including those individuals who may be coming from Washington or Colorado, where the use of marijuana is legal for recreational purpose.
The high court gave no indication when they will rule. The justices has not announced if and when they make a decision that could re-write the way the state’s driving under the influence laws are used.