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Riding High: Arizona's Zero-Tolerance Stance on Pot and Driving

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Following losses in court that ended Brewer and Horne's hope to thwart the intent of voters, a state-authorized medical-pot program finally has begun to bloom.

As of "4/20," a convenient reference point, 16 retail stores were doing business across Arizona, selling marijuana legally to some of the state's nearly 40,000 qualified patients. A couple of dozen more stores should be open by the state's deadline of June 8, after which there are no provisions under current state rules to license more.

That's good news for the 841,346 voters who made Arizona one of 18 states — and don't forget Washington, D.C. — that have legalized marijuana for medicinal use.

Still, a lottery held last year for 99 approved locations in Arizona hadn't produced 99 dispensaries by mid-April, because of the cloudy future of the industry. This isn't a thin haze, either, but a wall of legal smoke that makes it impossible to see what's ahead.

Montgomery is challenging the successful 2010 voter initiative in the state Court of Appeals in a case that pits him against a would-be Sun City dispensary that has been refused zoning information from the county. The heart of his argument is that federal marijuana law should trump the wishes of state voters. If Montgomery's legal fight is successful, each marijuana dispensary — representing years of dreams and hundreds of thousands, if not millions, of dollars — will blow away.

It's likely that before the state fight concludes, however, the Obama administration will make a long-awaited statement on how it intends to treat medical-pot states like Arizona, as well as Washington and Colorado, where voters last year approved legalization of marijuana for anyone 21 and over. In the days leading up to the April 20 celebrations in Colorado and elsewhere across the country, Obama's drug czar, Gil Kerlikowske, and attorney general, Eric Holder, made vague statements suggesting a compromise that might please neither prohibitionists like Montgomery nor the burgeoning billion-dollar legal-marijuana industry.

In the middle of the legal mess, the highly political Montgomery fought a trial-court decision about marijuana and driving that made perfect sense.

His opinion about Arizona's DUI-drug law, which states that it's illegal for motorists to drive with a non-prescribed drug or "its metabolite" in their blood, has been backed up on at least three occasions by the Arizona Court of Appeals. This includes a February 13 decision in the case of Arizona vs. Hrach Shilgevorkyan, whose defendant had, up to that point, won dismissal of his marijuana-DUI in two lower courts.

The Valley resident and his lawyer, Michael Alarid, are appealing the decision to the state Supreme Court.

Hard science supports the crux of Shilgevorkyan's case. When marijuana gets processed by the body, it breaks down in the liver and kidneys into an inert molecule that's been proven non-psychoactive. This molecule, or metabolite, can show up in the bloodstream of a marijuana user for weeks after the last toke, and the state's own experts have testified that its presence alone says nothing about the potential impairment of a person at the time of a traffic stop.

Montgomery argues, and the Court of Appeals recently ruled, that when the state Legislature wrote the drug-DUI law, it intended the zero-tolerance stance to deter the use of illegal drugs.

Yet marijuana no longer is an illegal drug for many people — not under the laws of Arizona and many other states. Even the latest Court of Appeals ruling calls it an "illicit" or "proscribed" drug, though that's no longer entirely true.

The consequences of this confusing drug policy are such that whether or not the laws decriminalizing or legalizing marijuana eventually are struck down, the current situation opens the possibility for injustice to occur.

It's as though the law withdrew your privilege to drive to work Monday through Friday because, on Saturday night, you had a single glass of wine.

Worse, the zero-tolerance law, as it applies to pot clearly is misguided, if actual carnage on the road is a guide.

Statistics obtained by New Times show that despite warnings of bloodshed on the highways because of medical-marijuana laws, drivers with cannabis in their systems make up less than 1 percent of suspected impaired drivers believed to have caused fatal and injury crashes.

For a host of reasons, the state's total ban on marijuana in the blood of drivers has been rendered obsolete.

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Ray Stern has worked as a newspaper reporter in Arizona for more than two decades. He's won numerous awards for his reporting, including the Arizona Press Club's Don Bolles Award for Investigative Journalism.