Medical-marijuana patients are still at risk for a DUI conviction simply for having trace amounts of THC in their bloodstreams, the state Court of Appeals confirmed on Tuesday.
In a 3-0 ruling with disclaimers by one judge, the court upheld the conviction of a Mesa man despite an apparent exception for such prosecutions in the voter-approved, 2010 medical-pot law.
Arizona, if you haven't heard, has a zero-tolerance law against drivers with marijuana metabolites in their veins, medical card or not. Our May 2013 feature article, "Riding High," covered how it was possible for patients or illegal cannabis users to be convicted for DUI even when impairment wasn't a factor, and even when the only metabolite found was carboxy-THC, a molecule known to be inactive.
In April, the state Supreme Court ruled that drivers could not be convicted solely because of the presence of carboxy-THC. But the ruling left patients and illicit users at risk of getting a DUI even when they weren't impaired.
Testing for marijuana in drivers isn't as simple as for alcohol, as you may have read. Whole-blood tests can't determine when someone used marijuana because active THC can stay in the bloodstream hours or days after the last toke. Arizona has for years taken the easy way out of the problem by allowing drivers who test positive for any THC to be charged with a crime.
Darrah and his lawyer sought to challenge the status quote following his DUI arrest in late December of 2011. He was stymied from the beginning when a Mesa city judge wouldn't allow him to introduce his state-certified qualification as a medical-marijuana patient as evidence in the case.
After his Mesa conviction was upheld in county Superior Court, Darrah took his case to the Court of Appeals, arguing that while the 2010 Arizona Medical Marijuana Act prohibits driving under the influence of marijuana, it says patients can't be prosecuted "solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment."
The Court of Appeals judges wrote in Tuesday's opinion that the "carve-out exception" does not "completely ban" the state from prosecuting people under the zero-tolerance law. The state Supreme Court, they stated, made it clear that prosecutors don't have to "prove that the marijuana was illegally ingested."
The judges voted 3-0 to uphold Darrah's conviction. He's now scheduled for a November 3 sentencing hearing. Too much sympathy toward Darrah probably isn't warranted: the ex-con and former thief received probation last year after being convicted for felony child abuse. He broke a tyke's leg, among other things.
Still, his appeals court case is one for the history books -- another chapter in the saga of marijuana's legal status in the 21st century. The story isn't finished yet, as Presiding Judge Kent Cattani showed by "specially concurring" in the court decision.
Cattani disagrees that the AMMA can never block a metabolite-based prosecution, and said the state Supreme Court did not create a "controlling" precedent on the matter with its April ruling. In his view, Cattani wrote, a qualified medical user shouldn't be convicted for a metabolite-only DUI if "he or she establishes that the amount of THC or marijuana metabolite in the blood was in insufficient concentration to cause impairment."
Cattani went along with the decision uphold Darrah's conviction, though, because Darrah's blood was found to contain four nanograms per milliliter of active THC after the traffic stop. A criminologist testified during the trial that four nanograms "could possibly" cause impairment, and Darrah did not present evidence to refute that argument.
Cattani went on to write in a footnote that he believes no authorized Arizona user of marijuana should be convicted under the metabolite statute when a driver's blood contains less than two nanograms per milliliter. He points out that in Washington, where adults 21 and over have the freedom to buy and possess marijuana at state stores, drivers aren't considered to be impaired unless they have more than five nanograms per milliliter.
A Washington state police spokesman told New Times last year that it was still unknown whether five nanograms of active THC caused impairment in all users.
In any case, as our research last year using 2012 data showed, injury and fatal crashes attributed to marijuana use are relatively rare in Arizona.
We Believe Local Journalism is Critical to the Life of a City
Engaging with our readers is essential to Phoenix New Times's mission. Make a financial contribution or sign up for a newsletter, and help us keep telling Phoenix's stories with no paywalls.
Support Our Journalism
Click here to read the Arizona Court of Appeals ruling in the case of Travis Darrah.
Got a tip? Send it to: Ray Stern.