February 21st, 2009 | 2 Comments
For the second time in less than a week, I’ve been inspired to write by a post over at the DUI Blog. I guess that Kentucky, my home state, might pass a law allowing a driver who tests positive for traces of marijuana to be convicted of DUI even if he or she is unimpaired. The DUI Blog puts that in the this-is-getting-ridiculous department. Well, here in Arizona, we’ve been ridiculous for a while.
Arizona’s DUI law says, “[i]t is unlawful for a person to drive or be in actual physical control of a vehicle in this state . . . [w]hile there is any drug defined in section 13-3401 or its metabolite in the person’s body.” Impairment doesn’t matter, as it’s a strict liability crime. If a test can detect a drug or its metabolite in your body, you’ll be charged regardless of the quantity. I’m not saying quantity is a good sign of impairment, but a statutory minimum would at least save some unimpaired drivers from being charged. Currently, in Arizona, even you test positive as a result of legally smoking medical marijuana a couple weeks earlier, that won’t help you one bit. There are also plenty of legal drugs, both prescription and over-the-counter, that might land you in jail if you’re caught driving after taking them.
But don’t worry, the list of drugs in section 13-3401 isn’t that big. Oh wait, nevermind. The list is huge, and who knows how many metabolites each of those drugs has. Aren’t laws supposed to give us some kind of notice about what is and isn’t illegal? It might not be a bad idea to keep a doctor, pharmacist, or maybe chemist on speed dial to make sure you aren’t breaking the law by driving.
To give you an example of how our DUI drug law might convict an innocent person, here’s a little story. A client works a full shift. His managers and co-workers are with him the whole time, and at no point does he use any kind of illegal substance. He gets in his car to drive home. As he leaves the parking lot, he makes a wide right turn, and an officer pulls him over for breaking a traffic law. After approaching, the officer says he smells marijuana and claims the client has a green tongue. The officer asks the client if he recently smoked marijuana, and the client says “yeah, a few weeks ago.” The police report, of course, will merely note “suspect admitted to smoking marijuana.” The client is arrested, and a subsequent blood test eventually comes back positive, though only slightly over the absolute minimum amount the state’s equipment is capable of detecting.
In most instances, that client will be convicted of DUI drugs. Furthermore, his strict-liability DUI drug conviction will result in a one-year driver’s license suspension, not the 90-day suspension a driver actually impaired by alcohol would have gotten. The client will also have to equip his vehicle with an interlock device that does nothing to detect whether he has one of the numerous forbidden drugs or metabolites in his body.
If Kentucky’s legislature has even the tiniest bit of common sense, it won’t go down the ridiculous path we have.
Filed under: Arizona Cases, Arizona Statutes, DUI, Government Rants, Legislation · Tags: DUI drugs, green tongue, interlock, kentucky, Legislation, Marijuana, metabolite, ridiculous, strict liability, suspension