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Updated Feb 13, 2013 - 5:28 pm

Arizona court ruling upholds DUI test for marijuana

PHOENIX — An appeals court has issued a ruling that upholds the right of
authorities to prosecute pot smokers in Arizona for driving under the influence
even when there is no evidence that they are actually high.

The ruling by the Court of Appeals focuses on the chemical compounds in
marijuana that show up in blood and urine tests after people smoke pot. One
chemical compound causes drivers to be impaired; another is a chemical that
stays in people’s systems for weeks after they’ve smoked marijuana but doesn’t
affect impairment.

The court ruled that both compounds apply to Arizona law, meaning a driver
doesn’t have to actually be impaired to get prosecuted for DUI. As long as there
is evidence of marijuana in their system, they can get a DUI, the court said.

The ruling overturns a decision by a lower court judge who said it didn’t make
sense to prosecute a person with no evidence they’re under the influence.

The lower court judge cited the proliferation of states easing their marijuana
laws, but the Court of Appeals ruling issued Tuesday dismissed that by saying
Arizona’s medical marijuana law is irrelevant regarding DUI. More than 35,000
people in Arizona have medical marijuana cards.

The Court of Appeals said the Legislature adopted the decades-old comprehensive
DUI law to protect public safety, so a provision on prohibited substances and
their resulting chemical compounds should be interpreted broadly to include
inactive compounds as well as active ones.

The case stems from a 2010 traffic stop in Maricopa County. The motorist’s
blood test revealed only a chemical compound that is found in the blood after
another compound produced from ingesting marijuana breaks down.

According to testimony by a prosecution criminalist, the compound found in the
man’s blood doesn’t impair the ability to drive but can remain detectable for
four weeks.

The man’s lawyer argued Arizona’s DUI law bars only marijuana and “its
metabolite,” so only the first derivative compound that actually impairs
drivers is prohibited.

Two lower court judges agreed, with one upholding the other’s dismissal of the
case against the motorist, Hrach Shilgevorkyan.

Superior Court Commissioner Myra Harris’ ruling noted that several states have
decriminalized pot, and that a growing number of states, including Arizona, have
legalized medical marijuana.

“Residents of these states, particularly those geographically near Arizona,
are likely to travel to Arizona,” Harris said in her 2012 ruling upholding the
dismissal. “It would be irrational for Arizona to prosecute a defendant for an
act that might have occurred outside of Arizona several weeks earlier.”

However, the Court of Appeals sided with prosecutors who appealed, saying that
allowing the testing for marijuana’s active compound would unduly restrict law
enforcement.

The ruling said it serves the Legislature’s intention to have a flat ban on
driving under the influence to interpret the DUI law’s reference to a prohibited
substance and “its metabolite” as covering both a substance’s active and
inactive compounds.

Michael Alarid III, a lawyer for Shilgevorkyan, said he’ll ask the Arizona
Supreme Court to consider an appeal.

He added the testing issue is increasingly important because people legally
using pot in two Western states that last year approved pot decriminalization
laws _ Washington and Colorado _ could be convicted of DUI if arrested while
driving in Arizona weeks later.

Michael Walz, a Phoenix attorney who specializes in defending people charged
with violating marijuana laws but doesn’t represent Shilgevorkyan, said
Tuesday’s decision officially backs up a practice that authorities in Arizona
have been using for years.

But he predicted the ruling eventually will be overturned.

Walz said the decision runs counter to the Legislature’s wishes, and that the
state’s medical marijuana law gives cardholders immunity from DUI convictions
based solely on the presence of metabolites in a person’s system that don’t
appear to be enough to cause impairment.

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