Drivers aren't high but still busted for DUI: Column

EJ Montini | USATODAY

What if you could get a DUI for having had a few drinks two weeks ago?

Crazy, right?

Except it's happening. Not with alcohol, but with marijuana.

Drivers from Arizona and at least nine other states, including Utah, Iowa, Indiana, Delaware and Rhode Island, are going to jail, paying big fines and losing their licenses after having gotten driving-under-the-influence citations when blood tests prove they were not high.

"It makes no sense," says attorney Michael Alarid III, who is representing a man charged in Arizona. "But this is how prosecutors and the courts are interpreting the law. And the legislature doesn't appear to want to change it. So we're hoping we can get the issue before the state Supreme Court."

How could a person who is not high get busted for DUI? It happens when science meets politics.

Blood tests can detect two important chemical compounds that come from marijuana. One of them, THC, makes a person high and lasts for hours. The other inactive chemical, created as your body neutralizes THC, can linger in a person's system for up to a month.

In Arizona, state law says if you have either of these compounds in your blood, you are guilty of a DUI.

"As things stand," Alarid says, "a person from Arizona could go on a snowboarding trip to Colorado or Washington state, where marijuana is legal for recreational use, and then a month later he could be driving in Arizona, get stopped and be convicted of DUI."

Not long ago, the state Court of Appeals upheld Arizona's law, which says if any "metabolite" of a drug like marijuana is found in a person's blood he is guilty of DUI.

Alarid got a lower court to dismiss the original charges against his client after it was shown that the marijuana chemicals found in his client's blood were inactive. The Court of Appeals overturned it. In its ruling in Arizona v. Shilgevorkyan,the court says, "We determined that the legislative ban extends to all substances, whether capable of causing impairment or not."

Apparently, there is no statute in Arizona outlawing impaired logic. Not in Michigan or Illinois, either, where even the state Supreme Courts have upheld DUI convictions of people not under the influence of anything.

In Arizona, the case is being prosecuted by the Maricopa County Attorney's office. I asked County Attorney Bill Montgomery whether he believed it was appropriate to convict people for DUI when the only marijuana metabolite in their blood did not cause impairment.

He responded, "The Court of Appeals decision is unremarkable in light of consistent case law on the issue of proscribing driving with a prohibited drug or its metabolite in a driver's system."

Because that didn't answer my question I tried again, asking whether Montgomery would favor amending state law to differentiate between metabolites that cause impairment and those that do not.

He responded, "No. We do not want to create an incentive to 'game' how long it takes for any given metabolite to leave a driver's system. Nice try, Ed."

It isn't a game. It's chemistry.

Some states at least try to acknowledge the science. In Washington state, for example, a person is considered impaired if a blood test shows 5.0 nanograms of marijuana's active ingredient. That level has been compared to a .08 limit for alcohol.

"An alcohol DUI in Arizona gets your license suspended for 90 days," Alarid says. "After 30 days, you can drive to work and school. On the other hand, a drug-related DUI, like marijuana, gets you the same fines and jail time but revokes your license for a year. That means a person who wasn't impaired could be punished more harshly than someone who was."

Alarid is hoping the Arizona Supreme Court will take his case.

"In addition to the fairness issue, this doesn't seem right in a state where citizens passed a medical marijuana law," Alarid says. "It really puts an unfair burden on those patients."

The risk of getting busted for a DUI charge when they are not impaired might cause some medical marijuana patients not to use the drug, no matter how much it helps them.

Of course, it's probably just a coincidence that the politicians who could revise the DUI statute hate the medical marijuana law. As does the county attorney.

Coincidence. Yeah, that must be it.

EJ Montini is a columnist for The Arizona Republic. The column originally appeared in The Republic.



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