January 23rd, 2015 | 2 Comments
In Arizona, a marijuana DUI used to be a pretty cut and dried thing. The law said it was a crime to be in actual control of a vehicle with marijuana “or its metabolite” in your body, and courts treated it as a strict liability offense for all metabolites, regardless of impairment. Marijuana DUIs were pretty much all charged under two subsections: (A)(1), which requires proof of impairment to the slightest degree, and (A)(3), the strict liability subsection that did not. Luckily, that changed when the Supreme Court of Arizona held last April that drivers cannot be convicted of the (A)(3) offense based merely on the presence of a non-impairing metabolite that may reflect prior usage of marijuana.
As the opinion explained, THC is the primary psychoactive component in marijuana, which has “many, many metabolites.” Hydroxy-THC is a metabolite capable of causing impairment, but it does not exist in the blood for very long. It is quickly converted to Carboxy-THC, which is inactive, does not cause impairment, and can remain in a person’s body for as many as twenty-eight to thirty days after ingestion. Now, you can be convicted for having THC or Hydroxy-THC regardless of impairment, but not for Carboxy-THC. It’s a big deal considering the countless unimpaired drivers convicted of DUI over the years just for driving after having smoked marijuana in the month or so prior.
As is often the case, however, after one court took a big step forward, another took two steps back. Last October, the Court of Appeals of Arizona decided that the Arizona Medical Marijuana Act does not operate as a bar to an (A)(3) prosecution. To understand how idiotic that is, consider that the law specifically explains that, in the context of a DUI, a medical marijuana patient “shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.” The court basically thinks the legislature wrote a law for no reason, as its opinion makes it so that, for an offense that is always charged under two subsections with essentially identical penalties, the law provides a defense for one but not the other. The result is that it’s never actually a defense because a conviction is guaranteed regardless.
The only glimmer of hope was the special concurrence, which stated:
[I]n my view, an authorized user cannot be convicted under § 28-1381(A)(3) if he or she establishes that the amount of THC or marijuana metabolite in the blood was in insufficient concentration to cause impairment.
At least one judge seemed to think there was a problem, but the defendant had not argued lack of impairment so it did not matter.
The next month, unfortunately, another opinion from three different judges at the same court addressed that precise issue and came to the opposite conclusion. Those judges went for the absurd result with gusto, holding that there is no defense of lack of impairment or lawful use for an (A)(3) DUI involving medical marijuana and THC or Hydroxy-THC. Specifically, they said it was fine preventing a driver from even showing a jury his medical marijuana card or arguing he was not impaired by the concentration of THC or Carboxy-THC in his blood. To them, the law providing a defense to a marijuana DUI only applied to one type of marijuana DUI charge, not the other charge that is also present in every case. Thanks to them, it’s no defense at all because every person is still going to be convicted.
It’s really amazing to think about what Arizona’s courts are willing to condone. Someone could have a health problem that qualifies him to use medical marijuana. He could then get a written certification from a physician and lawfully obtain medical marijuana from a licensed dispensary. After using his lawful medication and responsibly waiting for the effects to wear off, he could then be stopped, arrested, charged, and convicted for driving without the slightest hint of impairment simply because he is unlucky enough to not metabolize the marijuana in his blood at the right rate. At trial, he cannot even show the jury his registry identification card or tell them how he lawfully used the marijuana for medicinal purposes. He cannot even argue that the fact he was not under the influence is a valid defense to one of the driving while under the influence counts, and five of six judges at the court of appeals think that’s just fine.
The only two positive things about this, I suppose, are that 1) the same case in front of a different three-judge panel with the concurring judge from the other opinion might turn out differently if he is able to convince another judge he’s right, and 2) the case from November still has a petition for review pending before the Supreme Court of Arizona. The good DUI opinion from April of 2014 was actually a reversal of a Court of Appeals of Arizona decision concluding that the phrase “its metabolite” was actually plural and lack of impairment did not even matter for an (A)(3) marijuana DUI involving Carboxy-THC.
Here’s hoping the Supreme Court does the right thing in 2015 and overturns another absurd Court of Appeals decision.
Filed under: DUI · Tags: 28-1381, a1, a3, active, AMMA, carboxy, card, cigars, driving under the influence, DUI, DWI, hydroxy, impairment, license, Marijuana, medical marijuana, metabolite, registry, THC