Arizona: Supreme Court Rejects DUI Per Se Standard For THC Metabolites

  • by Paul Armentano, NORML Deputy Director April 23, 2014

    The Arizona Supreme Court this week rejected a 1990 state law that classified the presence of inert THC metabolites in blood or urine as a per se traffic safety violation.

    Carboxy-THC, the primary metabolite (breakdown product) of THC is not psychoactive. Because it is lipid soluble, the metabolite may remain detectable in blood or urine for periods of time that extend well beyond any suspected period of impairment. As a result, the US National Highway Traffic Safety Administration acknowledges, “It is … currently impossible to predict specific effects based on THC-COOH concentrations.”

    Nonetheless, under Arizona law, the mere presence of carboxy THC — absent any evidence of behavioral impairment — was considered to be a criminal violation of the state’s traffic safety laws. (Delaware, Georgia, Illinois, Indiana, Iowa, Nevada, Ohio, Oklahoma, Rhode Island, and Utah impose similar statutes.) On Wednesday, the Court struck down the provision.

    Writing for the majority, Justice Robert Brutinel opined: “The State’s interpretation that ‘its metabolite’ includes any byproduct of a drug listed in § 13-3401 found in a driver’s system leads to absurd results. … Most notably, this interpretation would create criminal liability regardless of how long the metabolite remains in the driver’s system or whether it has any impairing effect. For example, at oral argument the State acknowledged that, under its reading of the statute, if a metabolite could be detected five years after ingesting a proscribed drug, a driver who tested positive for trace elements of a non-impairing substance could be prosecuted.”

    He added: “Additionally, this interpretation would criminalize otherwise legal conduct. In 2010, Arizona voters passed the Arizona Medical Marijuana Act (“AMMA”), legalizing marijuana for medicinal purposes. Despite the legality of such use, and because § 28-1381(A)(3) does not require the State to prove that the marijuana was illegally ingested, prosecutors can charge legal users under the (A)(3) provision. Because carboxy-THC can remain in the body for as many as twenty-eight to thirty days after ingestion, the State’s position suggests that a medical-marijuana user could face prosecution for driving any time nearly a month after they had legally ingested marijuana.”

    The Court concluded: “Because the legislature intended to prevent impaired driving, we hold that the ‘metabolite’ reference in § 28-1381(A)(3) is limited to any of a proscribed substance’s metabolites that are capable of causing impairment. Accordingly, … drivers cannot be convicted of the (A)(3) offense based merely on the presence of a non-impairing metabolite that may reflect the prior usage of marijuana.”

    The Court did not address provisions in the state’s per se DUI law outlawing the operation of a motor vehicle with any presence of THC in one’s blood even though, according to NHTSA, “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects.”

    20 responses to “Arizona: Supreme Court Rejects DUI Per Se Standard For THC Metabolites”

    1. William Clark says:

      Thanks for the chance to comment on this article.

      Prohibition of marijuana is a premise built upon a tissue of lies: Concern For Public Safety. Our new law in Michigan saves hundreds of lives every year, on the highways alone. In November of 2011 a study at the University of Colorado found that, in the thirteen states that legalized medical marijuana between 1990 and 2009, traffic fatalities have dropped by nearly nine percent—now nearly ten percent in Michigan–while sales of beer went flat by five percent. No wonder Big Alcohol opposes it. Ambitious, unprincipled, profit-driven undertakers might be tempted too.

      In 2012 a study released by 4AutoinsuranceQuote cited statistics revealing that marijuana users are safer drivers than non-marijuana users, as “the only significant effect that marijuana has on operating on a motor vehicle is slower driving”, which “is arguably a positive thing”. Imagine the further reduction in fatalities if marijuana were legalized for all adults.

      Marijuana has many benefits, most of which are under-reported or never mentioned in American newspapers. Research at the University of Saskatchewan indicates that, unlike alcohol, cocaine, heroin, or Nancy (“Just say, ‘No!’”) Reagan’s beloved nicotine, marijuana actually encourages brain-cell growth. Research in Spain (the Guzman study) and other countries has discovered that it has tumor-shrinking, anti-carcinogenic properties. These were confirmed by the 30-year Tashkin population study at UCLA.

      Drugs are man-made, cooked up in labs, for the sake of patents and the profits gained by them. They are often useful, but typically come with cautionary notes and lists of side effects as long as one’s arm. ‘The works of Man are flawed.’

      Marijuana is a medicinal herb, the most benign and versatile in history. “Cannabis” in Latin, and “kaneh bosm” in the old Hebrew scrolls, quite literally the Biblical Tree of Life, used by early Christians to treat everything from skin diseases to deep pain and despair. The very name, “Christ” translates as “the anointed one”. Well then, anointed with what? It’s a fair question. And it wasn’t holy water, friends. Holy water came into wide use in the Middle Ages.

      Medicinal oil, for the Prince of Peace. A formula from the Biblical era has been rediscovered. It specifies a strong dose of oil from kaneh bosm, ‘the fragrant cane’ of a dozen uses: ink, paper, rope, nutrition. . . . It was clothing on their backs and incense in their temples. And a ‘skinful’ of medicinal oil could certainly calm one’s nerves, imparting a sense of benevolence and connection with all living things. No wonder that the ‘anointed one’ could gain a spark, an insight, a sense of the divine, and the confidence to convey those feelings to friends and neighbors.

      What gets to me are the politicians, prosecutors, and police who pose on church steps or kneeling in prayer on their campaign trails, but can’t face the scientific or the historical truth about cannabis, Medicinal Herb Number One, safe and effective for thousands of years, and celebrated by most of the world’s major religions.

    2. Wow,, Finally the truth is coming out.

    3. Ohio I am says:

      Smells like Big Pharma is setting up
      the system to get their products
      available to use, the big money has
      their plan in motion, either way
      We will all get to partay in the light of day pretty soon.

    4. Ray says:

      Almost all drivers get into accidents, I don’t care who you are or how straight or stoned you are. Don’t drive high, just don’t do it. But that goes for prescription codine, sleeping pills, and any drug that could impare the driver.

      The person that comes up with an accurate high or not high machine for cops to test drivers with will be a billionaire.

      Or our police can just administer a sobriety test and save a lot of money. Why is this not enough?

    5. roy says:

      Holy fkn’s shlt Batman. this is huge. i cant remember the last time a high court decision came down that didnt kiss up to either a political group( the D’s and R’s ) or the rich and or powerful corporate types. a simple ruling to protect the people from the government. this will not be allowed to stand unchallenged. remember,when the r’s and d’s agree at any time at all. LOOK the F OUT.

    6. Galileo Galilei says:

      Great! Hopefully, the country will reject this latest waste of time and taxpayer money conceived by the prohibitionists. Laws should be passed to make the roadways safer for us all, not punish us for driving stone, cold sober.

      Incidentally, I played music in red neck bars back in the day. I also worked as a geologist and know that geologists and engineers in the oil & gas industry may stay up for 2-3 days when called to a well site. I saw just as many problems including maimings and deaths involving sleep deprivation as I did with alcohol intoxication.

    7. CHRIS-HERE says:

      So, I have a lawsuit against the ILWU up here in Dutch Harbor pending concerning this very issue. Am hoping to get NORMAL to write a brief on my behalf as FRIENDS OF THE COURT.

      [Editor’s note: Contact legal@norml.org]

    8. Mark I says:

      This is the rationale that led to responsible consumption and tolerable cultural restrictions, regulation, and taxation of alcohol. Why has it taken seventy years? Why has this nation turned a blind eye towards confiscation and destruction of personal properties without due process? Education is the key, not prohibition, of anything….tolerance is a two way excursion that leads to acceptance and deliverance from the evils of tyranny and abuses of absolute power.

    9. Julian says:

      Reading this great example of American justice where U.S. Law meets U.S. Science, then subsequently reading the active outreach going on this page from N.O.R.M.L. makes me devoutly moved and inspired. Even though I have to defend my own case in a San Antonio court next wednesday, to celebrate my victory im going to drive to Austin to attend the open N.O.R.M.L. meeting in Austin May 7th at the Flamingo Cantina with Democratic agricultural commissioner candidate Kinky Friedman. Hope to get Texas moving like Arizona!

    10. jimmy says:

      The sound reasoning from the bench,

      “Writing for the majority, Justice Robert Brutinel opined: “The State’s interpretation that ‘its metabolite’ includes any byproduct of a drug listed in § 13-3401 found in a driver’s system leads to absurd results. … Most notably, this interpretation would create criminal liability regardless of how long the metabolite remains in the driver’s system or whether it has any impairing effect. For example, at oral argument the State acknowledged that, under its reading of the statute, if a metabolite could be detected five years after ingesting a proscribed drug, a driver who tested positive for trace elements of a non-impairing substance could be prosecuted.”

      That could be viewed as a strong stance on the matter of cannabis in any regard, considering there has been a severe and unambiguous lack of statements from the judiciary regarding cannabis, since the Hon. Francis Young made his appeal to reschedule cannabis, based on scientific and pharmacological reasoning, not just ad hoc schedulings by Nixon, Mitchell, and their shill doctor panel.

      If cannabis is to be scheduled within a categorical ‘priority’ of sorts, then it should be so placed, based on the potential danger or harm to the user, and not done arbitrarily, but by protocol. It should be u s e f u l in some way, and consistent.

      So the same argument can be applied to another matter of public policy, and privacy rights, and that is mandatory drug testing for employees or students.

      If the scheduling system cannot serve in that simple role of assisting the citizenry in being informed about a particular matter, in order to make better decisions, then what good is it? It’s actually a scale of how severely punished the possession or use of a CSA drug is, a measure of how badly one is being unjustly treated for a non-crime. “Let the punishment fit the crime.” -Spinoza

      Association (mostly possession) with the “safest therapeutically active substance known to man,” (Judge Young), has resulted in one-quarter of the penitentiary population and half of federal inmates.

      Judge Young acknowledged that a therapeutically active substance is medicine. Cannabis is so non-toxic relative to anything else that even *if* cannabis did not also provide medicinal benefits (it does) along with its use as a recreational drug, due to it’s known safety (no deaths attributable to cannabis in history).

      Cannabis was the first plant cultivated by humans. Cannabis and humans formed a mutual relationship much as humans formed relationships with the wolf ancestors of our household dogs. No other single plant provides all the essential amino acids. Staple crops like corn + rice, beans + rice, other staples have to be mixed together to get all eight essential amino acids. Cannabis basically “showed” people how to grow it as they simply observed its natural flowering and annual cycles.

      Cannabis has been with us since the beginning, for its utility, as food (essential amino acids, essential fatty acids (e.g. omega-6), fiber, medicine,

      Botanist Michael Pollan describes the relationship as cannabis genes affecting our genes, in turn giving them the tremendous evolutionary advantage of having human care-takers ensure their proliferation, through the molecules, nutrients, medicines, that it creates, by chance. Molecules that fit in the cannabinoid receptor so ancient it can be found on cell surfaces of every mammal and through they phylogentic tree, down to invertebrates.

      Substances that strongly mimic and function like normal endogenous cannabinoids, or endocannabinoids, in the body, are provided by cannabis. Perhaps we became dependent on their supplementation as exocannabinoids, exogenous or environmental, in abundance, over a very long period, from cannabis (first plant cultivated, yes)

      Perhaps it was so ubiquitous, a constant of life, that even a mutation that led to decreased production of natural cannabinoids like anandamide, might be overcome or concealed,

      A person may no longer be “high,” or “impaired” even when metabolites are present in the body. The breakdown products of cannabis are still present days or weeks later, excreted minutely over time.

      Drug testing costs a lot yet disregards the importance of how substances are metabolized, digested, over time. This inherent flaw of drug testing nevertheless continues to be insufficient for policy makers to end the practice, themselves, on behalf of their constituents. This, instead of feigning “concern” while being two-faced.

      It is not a practical test for drugs, usually 5 or more, they typically test for. It is a pointed test for cannabis.

      If they did not have cannabis on the list of drugs they arbitrarily decided to be “enemies of the workplace,” eventually they would find themselves out of business because the use of drugs that pose much more actual health risk, can be concealed easily with relatively brief abstinence, or with a prescription.

      Costly, unreliable and non-predictive results, from an ongoing bureacratic ripoff, from manipulators and lobbyists who force drug testing into public policy, for undeserved revenue.

      What kind of effectiveness ratings would they get, when job seekers know to expect a drug test for employment as the norm, but they couldn’t test for cannabis metabolites?

      The answer is the same for “how could they keep over-filling privatized prisons if cannabis were no longer a jailable offense?”

      Similarly, “how do you drastically increase the price or value of any normally commonplace commodity?” Make it rare, on purpose.