July 23, 2015
Arizona Marijuana DUI
Marijuana DUI cases present a real risk of prosecuting people driving while not impaired. A primary reason is legislation that contradicts what science tell us it true about the drug. However, recently much of the scientific reality about marijuana has made its way to a number of higher courts. This includes the Arizona Supreme Court. As a result, the current state of Arizona law provides that prior marijuana use should not, alone, support a DUI conviction.
However, while many of the myths about the meaning of a positive marijuana test result have been discarded – the world views of the people that previously prosecuted such cases still remain. These world views are plainly evident in the way some jurisdictions now prosecute alleged marijuana DUI cases based upon junk science.
While no reasonable person would advocate for a person to drive while impaired by a drug, what should be equally concerning is the wrongful prosecution of someone based up an scientific sounding opinion lacking any basis in real science. After all, the American justice system was founded on the fundamental principle that “it is far worse to convict an innocent man than to let a guilty man go free.” In re Winship, 397 U.S. 358, 372, 90 S. Ct. 1068, 1077, 25 L. Ed. 2d 368 (1970).
There are many legitimate signs and symptoms that a person may be impaired marijuana, but unfortunately investigations often go well beyond actual science. For example, law enforcement will often testify they a green tongue means a person is impaired by marijuana. This proposition has no basis in science yet it taught by the National Highway Traffic & Safety Administration to officers across the United States. One court that looked into NHTSA’s green tongue theory found:
State has presented nothing, no scientific studies and no case law or other authority, to support the reliability of the trooper’s concern regarding the condition of Hechtle’s tongue. Cf. State v. Wheeler, No. 24397–1–II, 100 Wash.App. 1062, 2000 WL 646511, *2 n. 2, 2000 Wash.App. LEXIS 779, *7 n. 2 (Wash.Ct.App. May 19, 2000) (“Although we assume the officer’s assertion to be true for the purposes of this opinion, we are nevertheless skeptical as to its accuracy. We find no case stating that recent marijuana usage leads to a green tongue.”). State v. Hechtle, 2004 UT App 96, ¶ 13, 89 P.3d 185, 190
Even the Arizona Court of Appeals has held the mere “scent of marijuana, standing alone, is insufficient evidence of criminal activity to supply probable cause for a search warrant.” State v. Sisco, 2 CA-CR 2014-0181, 2015 WL 4429575, at *1 (Ariz. Ct. App. July 20, 2015)
DEFINING SOME TERMS
THC – also known as “Delta-9-tetrahydrocannabinol” is the main psychoactive constituent in marijuana.
Hydroxy THC – the primary metabolite of THC.
Carboxy THC – the metabolite of Hydroxy THC. Carboxy THC can remain in the body for as many as twenty-eight to thirty days after ingestion. State ex rel. Montgomery v. Harris, 237 Ariz. 98, 346 P.3d 984, 988 (2014). The presence of this metabolite provides no evidence of impairment.
Cannabinoids – the active constituents in cannabis.
HOW THE DRUG EFFECTS THE HUMAN BODY
It is common knowledge that the higher your alcohol concentration, the more severe your intoxication. However, marijuana does not affect you the same as alcohol. The highest levels of the active part of marijuana (THC) are usually in your blood within about 3 to 10 minutes following inhalation. This does not mean the concentration of the drug will be at its highest level in that time frame. The concentration of THC in a blood sample simply has no correlation with a level of impairment.
Marijuana’s maximum influence on your performance usually manifests in 20 to 40 minutes after inhalation, yet this is also during the time period when the your THC levels are rapidly falling. (Sewell et al., 2009).
Science has yet to meaningfully quantify how and to what extent marijuana impairs us. While it is “well established that alcohol consumption increases accident risk, evidence of cannabis’ culpability in on-road driving accidents and injury is far less robust” (Armentano, 2013).
In sum, presence of marijuana in your blood is simply not a reliable indicator of psychomotor impairment.
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