Attorney Alarid points out that he didn't even need to bring in expert testimony for the Superior Court appeal, because the state's expert conceded that carboxy-THC can't impair anyone — and can't be used to determine impairment.
The state's position that it's okay to prosecute people for a pot-DUI because of the presence of carboxy-THC is "absurd," Alarid declares.
In February, though, the Court of Appeals sided with Montgomery and upheld these prosecutions. Like Harris, the appellate justices were forced to try to read the minds of previous legislators and determine their intent in forging the DUI-drug law. The justices concluded that "its metabolite" could be considered plural because lawmakers must have wanted to deter drivers from having any "illicit" drug in their systems.
Alarid's appeal to the state State Supreme Court argues that the appellate justices erred by considering the "outdated premise" that marijuana is an illicit drug.
Not only does Alarid hold out hope for his client's case, but he says this is the best chance for the state to get rid of the bad law. He believes that individual lawmakers would be too afraid of getting labeled soft on crime to ever push for leniency for pot-using drivers.
Even if doing so would be rational.
On the night of February 20, 2012, Tempe resident Michael Poshka, 30, allegedly slammed his Jeep Cherokee into a woman walking near Eighth Avenue and Stapley Drive in Mesa, then drove away and left her to die beside the road.
After a witness called in the collision, Poshka quickly was stopped in the area by a patrol officer. He and the Jeep reeked of pot, and Poshka "was having a difficult time standing up and was speaking very slow," a police report states. Two officers also noticed a faint smell of booze on Poshka's breath; he denied drinking or hitting anyone. He refused a breath test, wouldn't allow officers to look into his eyes, and refused a field-sobriety test. He admitted to smoking pot three days earlier.
A crime-lab report revealed that Poshka had 8.9 ng/ml of active THC in his blood just after the crash (and, if you're curious, 105 ng/ml of the inactive carboxy-THC).
By the numbers, he was too high to drive in any state. But the test also showed a BAC of .147, slightly below the state's "extreme DUI" limit of .15. Even without the pot, Poshka's BAC suggests he was still a serious risk to other drivers.
Had he stuck to pot only he probably wouldn't have crashed at all.
Despite the fact that marijuana is the second-most-used mind-altering substance behind alcohol in the country, pot trails alcohol and less commonly abused drugs when it comes to crashes, a New Times review of records shows. Compared to crashes believed to have been caused by booze, pot is nowhere close to being in the same league.
Statistics compiled by the Arizona Department of Transportation each year show that alcohol impairment is believed by police to be responsible for five to 10 times the number of fatal and injury crashes statewide as all other illegally used drugs combined.
For instance, in 2011, ADOT stats show that more than 16 percent of drivers believed responsible in fatal crashes had been drinking, while 3.5 percent had been under the influence of drugs (but not drinking).
Marijuana, obviously, makes up a fraction of the latter category.
State officials were unable to provide specific pot stats. To determine the number, New Times asked several Valley police agencies to provide the drug and alcohol test results in fatal and injury crashes from 2012 that involved a suspected impaired driver. Only Scottsdale and Chandler provided all the information; Phoenix gave up most of the info but did not provide all the alcohol-impairment test results.
Chandler reported blood-test data for 48 crashes involving impaired drivers who hurt or killed people in 2012. Nearly every one was attributed to alcohol. One driver was impaired by meth. No cannabis was detected in any of the drivers.
In Scottsdale, blood-test results were available in 100 of 117 serious crashes involving suspected impaired drivers from November 1, 2011 to December 31, 2012. (The other 17 crashes didn't become police investigations for various reasons, police say.)
Only one of the 100 cases involved a driver who tested positive for just pot. By comparison, three of the Scottsdale cases involved suspected impaired drivers who didn't test positive for any drug or alcohol.
Four other drivers came up dirty for pot — but also tested positive for booze, (two cases), Xanax (one case), and cocaine (one case).