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Driving with Marijuana Metabolite No Longer Illegal in Arizona

“Smoke ‘em if you got ‘em” is the new word from Arizona Supreme Court (State v. Harris (Shilgevorkyan, Real Party in Interest,) No. CV-13-0056-PR). Arizona was one of but a handful of “metabolite states” where it is illegal to drive with the psychoactive ingredient of marijuana “Tetrahydrocannabinol” (THC) in your system, or any of its metabolites. While it is still illegal to drive with THC in your system, it is no longer illegal to drive with any of pot’s inactive metabolites.

When someone smokes marijuana, the psychoactive ingredient (THC) is rapidly absorbed into the blood and can certainly have an impairing effect, dependent upon the dose. THC also rapidly breaks down, or “metabolizes” into another psychoactive compound known as “Hydroxy-THC” which also can have impairing effects dependent upon the dose. Hydroxy-THC rapidly metabolizes into Carboxy-THC which is inactive–in other words–it doesn’t get you high.
Until the Arizona Supreme Court ruled on April 22nd, 2014, it was illegal to drive with the psychoactive compound or any of the 80-plus inactive metabolites of weed in your system. That’s right–it was just as illegal to drive with a non-impairing compound of pot in your system as it was illegal to drive with active THC, Heroin, PCP, Methamphetamine or a blood alcohol content three or four times the legal limit.
This made no sense since drugged-driving laws were added to Arizona’s statutes in 1991. Unlike other ridiculous and nonsensical laws, this one only took thirteen years to overturn.
Hrach Shilgevorkyan was stopped for speeding and ultimately cited for DUI because he had admitted that he smoked “weed” the night before. Blood was drawn from him and it contained only the inactive carboxy-THC metabolite. He argued that the legislature could never have intended to include carboxy-THC because that would not impair a driver.
The trial court saw it his way and dismissed the charge. The prosecutors appealed and lost again in the Superior Court. Undaunted, they took a “special action” (because they had no right of appeal to a higher court at that point) which resulted in a reversal and a win for the prosecution by Arizona’s Division I Court of Appeals.

The defense then asked for a Petition for Review by the Arizona Supreme Court, which took jurisdiction. The question for the Court was whether the statute’s language, which makes it illegal to drive with marijuana “or its metabolite” in the body includes inactive, non-impairing compounds.

Both sides agreed on the essential fact of the case–carboxy THC does not impair. The question then became one of statutory interpretation. The Court found that “statutes should be construed to sensibly avoid reaching an absurd conclusion.”

Things didn’t play out well for the prosecutor’s arguments at the Supreme Court when they argued that if a metabolite could be detected for five years after ingesting a proscribed drug, a driver who tested positive for trace elements of a non-impairing substance could be prosecuted.

Despite the loss for the government, the top prosecutor for Maricopa County, Bill Montgomery, said that Arizona’s roads will be less-safe due to this ruling because if courts will not accept carboxy-THC results as evidence of impairment, then there is no way of knowing who is really high and who is not.

It boggles the mind, doesn’t it?

About James Nesci

James Nesci
James Nesci often defends cases well into the .30 blood-alcohol range. He has caught more than one police officer lying during cross-examination and some police officers have even refused to grant pretrial interviews to him without a prosecutor or their own counsel present. He was one of the lead attorneys on the Intoximeters® RBT-IV breath-testing issue in Southern Arizona which resulted in the suppression of breath tests in over 7,000 cases and the removal of the RBT-IV from the streets of Arizona. He also spear-headed the effort to obtain the manufacturer’s source code and software for the CMI Intoxilyzer 8000. Although the source code was never obtained, he almost single-handedly ground 90% of all DUI prosecutions within the City of Tucson to a halt for nearly three years and obtained breath test suppressions and dismissals in hundreds of DUI cases. In addition to “traditional” DUI cases which involve alcohol, Mr. Nesci is a recognized expert on the defense of DUI/Drugs cases. Whether they be legal-over-the-counter-medications, prescription medications or illicit drugs, such DUI cases are far more complex and present cutting-edge issues for the courts. He is qualified to administer Standardized Field Sobriety Tests under National Highway Traffic Safety Administration & International Association of Chiefs of Police Guidelines. In 2006, he was appointed Regent of the National College for DUI Defense, Inc. He was formerly the chair of the Curriculum Committee for the NCDD. Currently, he is the State Delegate Coordinator, a member of the Amicus Committee, Treasurer of the NCDD, Member of the Executive Committee and served as an oral argument judge for the Board Certification Committee. Mr. Nesci is the author of Arizona DUI Defense: The Law & Practice, a legal treatise written for DUI defense attorneys and published by Lawyers and Judges Publishing Company (now in its third edition) [www.lawyersandjudges.com]. In 1999 Mr. Nesci became a Sustaining Member of the National College for DUI Defense [www.NCDD.com]. In 2001, he was Board Certified by the National College for DUI Defense, Inc., which is a is recognized by the American Bar Association. He is one of only three Board Certified attorneys in the State of Arizona, and one of less than fifty Board Certified attorneys in the nation (as of January, 2012). Mr. Nesci has lectured from coast-to-coast for such organizations as The University of Arizona James E. Rogers College of Law, Arizona State University College of Law Alumni Association, University of Mississippi CLE Department, South Texas College of Law CLE Department, Arkansas Association of Criminal Defense Lawyers, Arizona Attorneys for Criminal Justice, Arizona Public Defenders Association, California Attorneys for Criminal Justice, City of Phoenix Public Defender's Office, Colorado Criminal Defense Bar, Florida Association of Criminal Defense Lawyers, Indiana Public Defender’s Council, Kansas Association of Criminal Defense Lawyers, Louisiana Association of Criminal Defense Lawyers, Maricopa County Bar Association, Maricopa County Public Defender's Office, Maryland Criminal Defense Attorneys Association, the Mexican-American Bar Association at Loyola, the National Association of Criminal Defense Lawyers, the National College for DUI Defense, the Nebraska Criminal Defense Attorney’s Association, the Nevada State Bar Association, the New York State Bar Association, the Ohio Association of Criminal Defense Lawyers, the Pima County Bar Association, the Pima County Bar Association Young Lawyer’s Division, the Texas Criminal Defense Lawyers Association, the Tucson City Public Defender’s Office, the Tulare County (California) Public Defender’s Association, the Utah Criminal Defense Lawyers Association, and the Washington Foundation for Criminal Justice. He has taught seminars on the subjects of Ethics, 4th Amendment Law, Drug Recognition Evaluations (DUI-Drugs/DRE), Cross-Examination, Trial Tactics, Jury Selection, Field Sobriety Testing, Driving Behavior, Blood Alcohol Calculations, Opening & Closing Arguments, Source Code Litigation, Frye & Daubert Challenges, Intoxilyzer 8000 Operator’s Course, Headspace Gas Chromatography, Blood and Breath Testing. He has represented former Supremes lead singer Diana Ross and Tampa Bay Buccaneers' Tight-End Jerramy Stevens on Extreme DUI charges and fitness guru Richard Simmons on an assault charge. Mr. Nesci lives in Tucson with his wife and twin daughters. He is an honorably discharged veteran of the U.S. Navy where he spent much of his time working as an electrician in the Philadelphia Naval Shipyards. His interests are traveling, fine wines, vintage port and fast cars. He is an amateur race car driver, an accomplished mechanic, and a Corvette fanatic.

If you would like to contact the author, please visit: http://www.azdefense.com/


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