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

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Like Tad Zaccard, East Valley resident Hrach Shilgevorkyan insists he wasn't high or impaired in the slightest when he was pulled over.

At least, that's what he says through his Phoenix lawyer, Michael Alarid. Shilgevorkyan, on the advice of his lawyer, wouldn't speak with New Times for this article.

Shilgevorkyan, a 28-year-old restaurateur, was pulled over in December 2010 by a state highway patrolman who accused him of speeding and making an unsafe lane change. The trooper didn't smell any pot but thought the driver's eyes looked droopy and that his speech seemed slurred.

Also like Zaccard, Shilgevorkyan didn't ace the field-sobriety test and admitted he'd smoked marijuana the day before.

Accusing the 28-year-old of being stoned while driving, the Department of Public Safety officer took him to a station and had his blood drawn about 90 minutes after the stop. He wrote Shilgevorkyan two tickets — one for driving while impaired and one for driving under the influence of a drug.

The blood test ultimately would reveal a relatively tiny amount of an inactive metabolite of marijuana called carboxy-THC.

Quick pot-metabolism primer: You've probably heard of THC (delta 9-tetrahydrocannabinol), the psychoactive drug in marijuana that gets people high.

When ingested, THC flows through the bloodstream into the brain, the eyes, and other places that are rich with cannabinoid receptors. This "active" THC causes changes in perception, a feeling of well-being, and sometimes paranoia.

Research by the National Institute for Drug Abuse claims that active THC can be present at some levels in the blood of extreme stoners for up to three weeks, and that a corresponding negative effect on motor skills and thinking — both of which are rather important when driving — can be measured for up to that long, too.

Lots of different chemicals are produced when the body metabolizes THC. Arizona crime labs usually test for three molecules when examining blood for evidence of marijuana use: THC, its primary metabolite, hydroxy-THC, and the inactive metabolite carboxy-THC.

No one can predict the level at which any particular driver is too impaired by active THC.

Although 5 nanograms per milliliter is the legal cannabis threshold for drivers in Washington, a spokesman for the Washington State Patrol says it's still unclear whether that's the "right number" for determining whether a driver is impaired.

"We're studying the studies," says Robert Calkin, Washington State Patrol spokesman. "At this point, we have not reached a conclusion either way."

But one distinction needs to be emphasized: Washington's threshold applies only to active THC — not to the metabolite hydroxy-THC and certainly not to the inert secondary metabolite, carboxy-THC.

No question exists about whether carboxy-THC can impair a driver: It can't.

Nor does the amount of carboxy-THC in the blood or urine at any given time reveal how much active THC was in the body at the time of a traffic stop.

Though the DPS crime lab tested Shilgevorkyan's blood for active THC, the test revealed only the presence of 8 nanograms per milliliter of carboxy-THC.

With no strong evidence of impairment from Shilgevorkyan's driving behavior, the condition of his eyes, or his minor failings in the field-sobriety test, county prosecutor Sean Coll moved to dismiss the first charge of driving while impaired. The state's zero-tolerance law allowed the state to continue pressing the charge of driving with an illegal drug in the bloodstream.

With Alarid's help, Shilgevorkyan moved to dismiss the case based on the idea that the DUI-drug law refers to the drug and "its metabolite," which clearly is in the singular form. The state tested for two metabolites, though — hydroxy and carboxy. Therefore, Alarid argued, the test for the second metabolite was no good. An Arcadia Biltmore Justice Court judge agreed and dismissed the case.

Bill Montgomery's office appealed the ruling to county Superior Court, where Commissioner Myra Harris found Alarid's arguments compelling enough to reject the state's appeal. Harris noted that previous court rulings on state statutes allow for singular words to be considered plural — and plural to be considered singular — if the interpretation advances the intent of lawmakers.

In her ruling on May 12, 2012, Harris noted that it was possible under the state's current scheme for sober drivers to be cited for DUI, convicted, and punished with up to 10 days in jail and a $1,000 fine. Surely, convicting unimpaired drivers for impaired driving couldn't have been the Legislature's intention, Harris reasoned.

Her ruling, made before the historic legalization votes in Colorado and Washington, tried to take a fair look at how the zero-tolerance law for drivers fits in with the current marijuana policy in Arizona and other states. She concluded that it didn't.

"Other states have decriminalized marijuana use or substantially lowered the classification to a petty offense," Harris wrote. "Residents of these states . . . are likely to travel to Arizona. It would be irrational for Arizona to prosecute a defendant for an act that might have occurred outside of Arizona several weeks earlier."

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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.