Judge rules marijuana’s not proof that someone is actually impaired

By Howard Fischer 

People with
marijuana in their system can escape being convicted of drugged-driving
charges if they can show they weren’t “high” enough to be impaired, the
Arizona Supreme Court ruled Nov. 20.

The justices
rejected a claim by two individuals that the fact they have a
state-issued card allowing them to ingest the drug automatically means
they can never be charged with driving while impaired. Chief Justice
Scott Bales, writing for the unanimous court, said nothing in the 2010
voter-approved law allowing the medical use of marijuana provides such

But Bales said the presence of marijuana is not proof that someone is actually impaired.

Last week’s ruling creates what is called an “affirmative defense” for those charged with driving with drugs in their system.

In essence, they can still be charged with
violating the law. And all prosecutors have to prove is that they did,
in fact, test positive for marijuana or one of its metabolites, the
chemicals caused when the drug breaks down in the body.

But Bales said defendants can escape conviction
if they can prove to a court “that the concentration of marijuana or its
impairing metabolite in their bodies is insufficient to cause

The decision is a mixed bag for prosecutors.

On one hand, they praised the fact the high court
did not say medical marijuana users can drive without fear of being
stopped or prosecuted.

“This is a very welcome ruling in today’s culture
where the small minority of individuals who use marijuana seek to
reorganize Arizona’s laws to protect their use to the detriment of the
public’s safety,” said Yavapai County Attorney Sheila Polk.

But they were upset that the justices effectively
voided the state law which makes it a crime for individuals to operate a
vehicle “while there is any drug defined in (state law) or its
metabolite in the person’s body.”

Maricopa County Attorney Bill Montgomery said
that law is plain on its face: If a motorist tests positive for
marijuana, he or she is guilty, period. He said that differs from other
statutes where prosecutors have to specifically prove someone was

Bales conceded that point. And he said there apparently was a purpose behind that statute.

“The Legislature, in seeking to combat the
serious problem of impaired driving, recognized that for certain drugs
it may be difficult to identify concentrations that definitely establish
whether a defendant is impaired,” Bales wrote.

But he said there’s another law at play: the one
voters approved in 2010 allowing those with certain medical conditions
to legally possess and use marijuana. And that law spells out that a
patient “shall not be considered to be under the influence of marijuana
solely because of the presence of metabolites or components of marijuana
that appear in insufficient concentration to cause impairment.”

Bales said those two statutes, read together,
give medical marijuana patients the chance to argue that they cannot be
convicted because they were not impaired.

Montgomery said there’s one big practical problem
with that: There are no scientific studies which show at what level of
marijuana in the blood someone becomes impaired.

That’s far different than laws dealing with drunk
driving. Lawmakers have enacted statutes saying that someone who has a
blood-alcohol concentration of 0.08 or more is presumed to be driving
while intoxicated.

What that potentially leaves, said Montgomery, is having defendants themselves testify that they were not impaired.

For example, he said an individual could say he
uses marijuana for back pains but still had a spasm, which is what
resulted in the car jerking, which is why the officer pulled the person
over in the first place.

“I’m going to declare from my personal testimony I
wasn’t impaired, I drive like this all the time,” Montgomery said the
testimony might go.

He pointed out the ruling says that question of
impairment is determined by the “preponderance of the evidence,” meaning
whether something is more likely than not. And Montgomery said that
could mean a defendant would be acquitted unless a prosecutor could find
some way — he’s not sure how — to rebut the driver’s self-proclaimed
claim that he or she was not impaired.

The Nov. 20 ruling extends even farther the legal
protections the state Supreme Court provided last year for marijuana
users charged with drugged-driving.

In that case, the justices threw out a conviction
where the evidence against the driver was a specific metabolite,
carboxy-THC. Justice Robert Brutinel, writing for the court, said there
was no evidence that metabolite — the one that police routinely tested
for — means someone was impaired.

More to the point, he said allowing that to become the test would be unfair.

“Because carboxy-THC can remain in the body for
as many as 28 to 30 days after ingestion, the state’s position suggests
that a medical-marijuana user could face prosecution for driving anytime
nearly a month after they had legally ingested marijuana,” Brutinel
wrote. “Such a prohibition would apply even when the driver had no
impairing substance in his or her body.”

Polk said the ruling will have even more
far-reaching implications if voters approve the initiative now being
proposed for the 2016 ballot to allow the recreational use of marijuana.

With the question of what is “impaired” muddied
by the ruling, Polk said one alternative would be for the Legislature to
set a presumptive limit in statute on what automatically constitutes
impairment, similar to the 0.08 standard for alcohol.

But she said one provision of that proposal says
that an individual cannot be penalized for any action solely based on
the presence of marijuana or metabolites. Polk said that would forever
bar lawmakers from setting such a standard, even if medical science
could come up with a figure.

“This is a vital tool in keeping our roadways
safe and discouraging impaired drivers from getting behind the wheel,”
Polk said. “Given the rising accidents and fatalities involving
marijuana in Colorado and Washington, the protections for
marijuana-impaired drivers written into the proposed initiative to
legalize marijuana should be highly concerning to Arizonans.”
“Judge rules marijuana’s not proof that someone is actually impaired” is replublished article http://thefutureofcannabisintheworld.blogspot.com/2015/12/judge-rules-marijuanas-not-proof-that.html