The Costs of Punishing Sober Driving

By Craig Rosenstein

Craig J. Rosenstein represents clients in many aspects of criminal law, including misdemeanor and felony cases, with a focus on driving under the influence (DUI) defense. He graduated from the University of Arizona in Tucson, Arizona where he received his Bachelor of Arts degree in political science and then attended Arizona State University where he received his Juris Doctorate (J.D.) degree. He licensed to practice law in Arizona, as well as in theU.S. Federal District Court in the District of Arizona. He can be reached by phone at 480-248-7666 or by email at [email protected]

In the case of State v. Harris, the Arizona Court of Appeals, Division 1, made a ruling about driving under the influence of marijuana that will have far reaching effects in Arizona. State v. Harris, No. 1 CA-SA 12-0211,2013 WL 504558 (Ariz. Ct. App. Div. 1 Feb. 12, 2013). On its face, the decision has the appearance of reaffirming Arizona's zero tolerance policy on driving under the influence of drugs; however, the practical reality of this ruling is significantly more important to both interstate tourism and Arizona citizens' right to travel. The impact will be felt for years to come.

In Harris, the trial court ruled, and the Superior Court (acting as an appellate court from a court of limited jurisdiction) affirmed, that the presence of the compound Carboxy-THC alone in the defendant's system was insufficient to support a conviction for a DUI under A.R.S. § 28-1381(a)(3), the DUI drug statute. Id. This was an interesting and well-reasoned ruling (once one understands both the DUI statute and the unique nature of Carboxy-THC). Quite simply, Carboxy-THC is the "grandchild" metabolite of THC. THC is the active ingredient in marijuana, and the substance that causes individuals who consume it to become "high." THC lasts in the body for about 4-6 hours until it is metabolized by the body into Hydroxy-THC. Hydroxy-THC is still a psychoactive substance, which means that it can cause impairment if ingested or present in the human body. Hydroxy-THC lasts for a few more hours in the body until it breaks down into Carboxy-THC. Carboxy-THC is completely inactive and does not cause any impairment, and can stay in the human body for weeks before being excreted mostly through urine and sweat. Basically, what all this means is that if the average recreational smoker smoked a marijuana joint, they could have the active, impairing substances in their system for no longer than twelve hours, but could wake up sober and still have Carboxy-THC in their system for up to three to four weeks aft er they got high.

Until this month's ruling in Harris, Arizona's zero tolerance DUI drug policy was being interpreted differently by the defense and prosecution in Arizona. Id. In the situations where a criminal defendant was found to only have Carboxy-THC in their system, most prosecuting agencies would argue that even though the person may not be impaired at the time of driving, they were still in violation of the DUI drug statute, A.R.S. §28-1381(a)(3). They based this position on the wording of the statute which prohibits any driver from having "any drug defined insection 13-3401 [THC is included in this list] or its metabolite in the person's body." Since Carboxy-THC can only be produced by the presence of THC in the system at some point in time, the state argued that Carboxy-THC was by definition a metabolite, no matter how far removed from the active component, and therefore would generally choose to prosecute these cases. The defense community argued that the metabolite of THC was Hydroxy-THC and since the statute was referring to the singular possessive of the words "drug" and "metabolite", only THC and Hydroxy-THC satisfied the statute. Th is argument was further bolstered by the fact that it would be silly to make driving with Carboxy-THC, a non-impairing substance, in the system a violation of the DUI statutes.

In Harris, the Arizona Court of Appeals, in Division 1, overruled both lower courts and ruled that Carboxy-THC is a metabolite of THC and therefore satisfies the statute. Harris, at *3. In eff ect, this decision validates the stance that the state has been arguing: that "inactive" marijuana cases should be charged and prosecuted.

It is my understanding that the Arizona Supreme Court has been asked to take this case on appeal, but as of the time of the writing of this article, the Supreme Court has yet to grant certiorari. The practical reality of the Court of Appeal's decision is a potentially economically significant one to all Arizonians. In essence, the ruling means that anyone who has smoked marijuana within the past four weeks is potentially driving under the influence every time they get behind the wheel of a car in Arizona. While numerous states like Colorado and Washington have recently legalized (at the state level) the use of Marijuana as a recreational substance, Arizona is tightening its laws.Combine this recent DUI decision with the fact that in Arizona, possession of any useable amount of marijuana or paraphernalia is a felony, and Arizona risks the financial consequences of losing significant tourism from those states from individuals who legally recreationally smoke in their home states. Even those individuals who plan on abstaining from smoking while in Arizona are deterred from coming because they do not want to commit the crime of DUI simply by driving (while sober) over the state line. Furthermore, Arizona citizens who travel to those states on vacation and legally consume marijuana under those state laws should be aware that unless enough time has passed (weeks), when they come home, every time they get behind the wheel, although sober, they are technically committing the crime of DUI drugs.

All Arizonians need to take a good hard look at this law, and the Court of Appeal's decision interpreting the law, and decide for themselves whether this is a reasonable regulation. It is easy to take a blanket position of being tough on DUI drugs, but punishing people who are driving sober seems like it has gone too far. Also, is Arizonain an economic position to turn away tourism dollars from an ever growing segment of states who do not feel the same way about the recreational use of marijuana? Th ese are issues that should be discussed within our legal community, and at the very least is information that should be disseminated to all of our clients.