Drug-Related DUIs in Arizona

Interviewer: Let’s talk about drug-related DUIs, specifically illegal drug-related DUIs.  There was a recent ruling that affects illegal drug DUI cases in Arizona, so can you tell me what happened?

Arizona Has Revised a Statute Concerning the Prosecution of Marijuana-Related DUIs

Mike Munoz: Yes, the Arizona Court of Appeals just came out with a new case and essentially, it affects the state’s ability to prosecute certain types of marijuana related DUIs.  Under Arizona Revised Statute 28-1381(A) (3), that is the normal DUI drug charge and under that, the state has to prove that you’re driving a motor vehicle and you have the metabolite of any illegal drug.  For marijuana, the state has been prosecuting people for years based on having the metabolite of marijuana in your body.

The Marijuana Metabolite Can Remain in a Person’s System for 30 Days

The problem with that is marijuana takes, for some people, as long as 30 days for the metabolite to flush out of your body.  The thing is, obviously if someone smokes marijuana today, they’re not going to be high a week from now if they don’t smoke again.  The issue here is it’s always argued.

When Marijuana Is Metabolized, 2 Metabolites Remain in the Blood Stream

It’s really unfair that the state is able to prosecute people for DUIs on marijuana only if they have a non-impairing metabolite in their system.  When marijuana breaks down there’s two types of metabolites that could be in your blood.  One is the active metabolite called hydroxy-THC and the other is the inactive metabolite called carboxy-THC.

The Active Metabolite Suggesting Impairment Is Hydroxy-THC

Now hydroxy-THC, if you have it in your blood, there’s no agreement on the rule but the idea is if you have hydroxy-THC at a very minimum, it suggests a recent ingestion.  Hydroxy-THC is the active metabolite, meaning it is a recent ingestion and there’s a higher likelihood, depending on how much is in your blood that you’re actually impaired by the marijuana.

Carboxy-THC Is an Inactive, Non-Impairing Metabolite

But if a blood test is done and there’s no hydroxy-THC and it’s only carboxy-THC, then all scientists will agree that that is a byproduct of hydroxy and that means that it is not impairing.  It’s literally just leftovers of the marijuana in your body.

That is the metabolite that could remain for weeks on end up to 30 days.  There has been lots of case where only carboxy-THC shows up in the system and the state has proceeded to prosecute these people for DUI, even though these people are technically and legally sober.

In Arizona Previously, a DUI Would Be Prosecuted If the Driver’s Blood Test Was Positive for the Inactive Metabolite

A case was taken in a justice court and the defense moved to dismiss based on the fact that the person only had carboxy-THC, the non-impairing version.  The trial court agreed and the case was dismissed.  The state appealed that ruling and went to the Court of Appeals and then the Court of Appeals said no, the legislature obviously made this law knowing this was possible. So therefore, we think you’re wrong, and Judge and the legislature pushed the case back in court and allowed the state to go forward.

Arizona Supreme Court Ruled That Since Carboxy-THC Is Considered the Non-Impairing Metabolite, Drivers Will Not Longer Be Considered to Be Impaired, Based on the Blood Test Results

The defense appealed from there and it went to the Arizona Supreme Court.  The Arizona Supreme Court just made a landmark decision a couple of weeks of ago that said no.  Basically it said they doubted the legislature ever intended for sober people to be prosecuted for driving under the influence.

The title of statute is Driving under the Influence. If you only have the inactive carboxy than it is impossible the person is under the influence. They made a very rational decision, a very good decision and they threw that portion out.  Now, the prosecutors all over Arizona are no longer to going to be able to prosecute people for carboxy-THC-only DUI cases.

Of course if there’s active THC or any other drug or alcohol in the system, they still have the right to go forward but in carboxy-THC-only cases, the state is not going to be able to go forward on those DUI prosecutions.

Are Individuals with Convictions Based on Carboxy-THC Blood Results Entitled to a New Trial?

Interviewer: What’s going to happen with people that have already been convicted based only on the carboxy metabolite?  Are lawyers going to go back and retry them?

Post-Conviction Rights Have a Statute of Limitations So It Is Advisable to Contact an Attorney to Explore the Available Options

Mike Munoz: Yes, possibly. That’s a bigger gray issue because there are post-conviction rights. People have post-conviction rights under rule 32 but those rights have time limits on them.  That’s going to be a big open issue for litigation and it remains to be seen how that works out.  My guess is the courts are going to look at all of those types of motions to reopen those cases on a case-by-case basis.

Interviewer: For people that are reading this and were convicted in those circumstances, should they hold that hope that anything could be done?

Mike Munoz: They should contact their attorney and set up a consultation, explore those options but it’s really going to be a case-by-case basis depending on how old the case is and the legal issues involved. This is because oftentimes in the past because of that law, experienced lawyers were obtaining certain types of beneficial pleas based on the status of the law back then.

Depending on how those pleas went forward, there could be technical issues where they might still be committed to the plea.  If someone is looking to explore those options, they should call an attorney.

Is It Likely That Arizona Law Enforcement Will Continue to Make as Many Marijuana-Related DUI Arrests?

Interviewer: Will drivers still be arrested and prosecuted just vigorously?  What is this going to do to people that are facing marijuana-related DUI charges?

Mike Munoz: The state has already decided.  The prosecutors and law enforcement have already decided that they’re making a very vigorous effort to prosecute marijuana DUIs.  Elected officials that run law enforcement and the main prosecutors are very against the medical marijuana laws in general and they fought very hard.

The Current Political Climate in Arizona Is against the Recent Medical Marijuana Laws and It Is Likely Many Marijuana-Related Arrests Will Continue to Be Made and Prosecuted

With this current case that the Supreme Court essentially ruled on.  I do not think they’re going to slow down their efforts going after marijuana DUIs.  The only thing now is they just are not going to have that weapon in their arsenal going after people who are sober.

Interviewer: Do you think this going to make people feel safe to drive when they smoked marijuana a day ago or a week ago or month ago?

Mike Munoz: That’s possible.  I don’t know what’s more likely to make people do certain things.  I think misinformation might make a person do that.  One of my worries is that some people will read some of the things in the media about the recent case and think that automatically means after all marijuana consumption it is okay to drive—that’s just not the case.

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