A recent article in Phoenix New Times by Ray Stern has caused quite a stir and a great deal of anxiety in Arizona. This is because, according to Maricopa County Attorney Bill Montgomery, “Arizona has a zero tolerance, when it comes to driving and marijuana and driving and drugs.”
In support of his opinion, Mr. Montgomery cites the recent Arizona Court of Appeals decision, State ex rel. Montgomery v. Harris, decided on February 12, 2013. In that controversy, a gentlemen named Hrach Shilgevorkyan was stopped for driving while under the influence. He had not been drinking, but a blood test revealed that he had an 8 nanograms/ml of blood level of Hydroxy-THC or “active THC” in his system. Before the passage of the AMMA, it was illegal for anyone to drive “while there is any illegal drug or metabolite of an illegal drug in your system.
However, under the Arizona criminal code prescription drug patients are allowed to use their prescription drugs and still drive, provided that they are not driving while under the influence of the drug. The term “under the influence” means that your driving is affected “to the slightest degree.” The same thing applies to one of the alcohol-related driving offenses-DUI, which means “driving under the influence.” The other way one can get in trouble for drinking and driving is to have a blood alcohol level in excess of 0.08 grams of alcohol per milliliter of blood in your system. So remember, when stopped and asked how, on a 0-10 scale, with zero being “not at all,” your driving was affected by the marijuana, you must say: “Not at all! Zero!” Any other answer will result in your conviction.
Mr. Montgomery and other law enforcement officials have yet to acknowledge that, according to the AMMA, and in my humble opinion, it is only illegal for a cardholder to consume marijuana and drive “while under the influence of marijuana.”
A.R.S. §36-2802 B states that “A REGISTERED QUALIFYING PATIENT SHALL NOT BE CONSIDERED TO BE UNDER THE INFLUENCE OF MARIJUANA SOLELY BECAUSE OF THE PRESENCE OF METABOLITES OR COMPONENTS OF THAT APPEAR IN INSUFFICIENT CONCENTRATION TO CAUSE IMPAIRMENT.
There are many metabolites of marijuana. Carboxy-THC, known as “inactive marijuana,” can remain in your system for about a month. No one can say how long it remains in your system. The good news, at least for cardholders, is that it doesn’t cause impairment.
Impairment can be caused by Hydroxy-THC, or “active THC.” Active THC remains in the bloodstream for more like hours than days. How much Active THC is enough to cause impairment? That is the $64,000 question. Unlike with alcohol, Arizona does not define how much THC is “presumed to cause impairment.” However, some states have adopted statutes that define driving under the influence of THC as having more than X nanograms of THC in ones system. In those states, if you have more than the legal limit of THC in your system and drive, you can be convicted, generally more than 5-9 nanograms.
Again, there is no threshold level for THC impairment. I don’t think that Mr. Shilgevorkyan would have been convicted, if he had been a licensed medical marijuana patient, but who knows. The judges in his case stated that their decision “does not implicate any aspect of the AMMA.” But that day is coming. Certainly, impaired cardholders can be convicted of DUI-drugs/marijuana.
The next challenge could become “a battle of the experts.” Since blood tests are generally given to all DUI suspects and those tests measure active and inactive THC, it won’t be long until judges are confronted with having to decide whether “so-called experts” in the field of THC impairment or lack thereof will be allowed to testify for and against cardholders, based upon the amount of active THC in their blood.
What would I do, if I were a cardholder and had consumed marijuana before being pulled over for allegedly-impaired driving? Arizona has an Implied Consent law. This means that, in Arizona, you will lose your driver’s license just for one year, just for refusing to submit to breath or blood tests. Also, if you refuse, the police can still try to get a court order allowing the forceful taking of your blood. Consequently, I probably would not refuse breath or blood tests. You have to consent to taking field tests, like standing on one foot, if you don’t want to. If you refuse to take the field tests, the police can’t claim that you were impaired because of your staggering, and things like that.
Never give anyone permission to search your car. Never show them how little marijuana you have in your possession. It will just make things worse. If they accused me of having or using marijuana, I would show them my card and then keep quiet, until you speak with an attorney of your choice.
Other states probably have different laws. Please educate yourself before you travel with marijuana in those jurisdictions.
JEFFREY S. KAUFMAN, LTD.
Attorney at Law
5725 North Scottsdale Road, Suite 190
Scottsdale, Arizona 85250
(480) 994-8129 (fax)
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