Ariz. driv­ers ar­rested high can ap­peal

Court: Mo­torists may try to prove no im­pair­ment

The Washington Times Daily - - POLITICS - BY AN­DREW BLAKE

The Ari­zona Court of Ap­peals ruled that med­i­cal mar­i­juana pa­tients ar­rested for driv­ing un­der the in­flu­ence of the drug can con­test DUI charges by ar­gu­ing be­fore a judge that they weren’t too high to op­er­ate an au­to­mo­bile.

As a re­sult of last week’s 2-1 de­ci­sion, Ari­zona po­lice must be able to prove that an al­leged DUI of­fender was too im­paired to be driv­ing, re­gard­less of the out­come of any blood tests.

The de­ci­sion stems from the 2013 ar­rest of Nadir Ishak, an Ari­zona man who had been stopped by Mesa po­lice af­ter the car he had been driv­ing al­legedly drifted into an­other lane. An ar­rest­ing of­fi­cer later tes­ti­fied that Ishak’s eyes were blood­shot and wa­tery, and said that he had ad­mit­ted to smok­ing mar­i­juana ear­lier that day.

Ishak was sub­se­quently charged with one count each of driv­ing while im­paired to the slight­est de­gree and driv­ing with mar­i­juana in his body and was or­dered to spend 90 days be­hind bars af­ter a jury found him guilty of the lat­ter.

In the state court’s de­ci­sion, how­ever, ap­pel­late Judge Diane Johnsen wrote for the ma­jor­ity that Ishak was de­nied a fair case be­cause the judge at trial pro­hib­ited him from let­ting ju­rors know he pos­sessed a state-is­sue med­i­cal mar­i­juana card at the time of his ar­rest.

Not only does the 2010 Ari­zona Med­i­cal Mar­i­juana Act au­tho­rize pa­tients such as Ishak to have mar­i­juana in their sys­tem, but the state Supreme Court de­cided in 2015 that pa­tients charged with DUI can ar­gue “that the con­cen­tra­tion of mar­i­juana or its im­pair­ing me­tab­o­lite in [his or her body] was in­suf­fi­cient to cause im­pair­ment,” the ap­peals court ruled.

An au­tho­rized med­i­cal mar­i­juana user must be af­forded “af­fir­ma­tive de­fense” upon be­ing charged with a mar­i­juana DUI, the rul­ing con­tin­ued, “by show­ing by a pre­pon­der­ance of the ev­i­dence that the mar­i­juana me­tab­o­lite con­cen­tra­tion in his or her sys­tem was in­suf­fi­cient to cause him or her to be im­paired at the time he or she op­er­ated or was in ac­tual phys­i­cal con­trol of a mo­tor ve­hi­cle.”

Tests taken af­ter Ishak’s ar­rest re­vealed each mil­li­liter of his blood con­tained 26.9 nanograms of tetrahy­dro­cannabi­nol, or THC, mar­i­juana’s high-in­duc­ing chem­i­cal. Ari­zona law doesn’t con­tain any thresh­old with re­gards to THC lim­its, how­ever, and Judge Johnsen ac­knowl­edged in her rul­ing that “there is no sci­en­tific con­sen­sus about the con­cen­tra­tion of THC that gen­er­ally is suf­fi­cient to im­pair a hu­man be­ing.”

“It is dif­fi­cult to es­tab­lish a re­la­tion­ship between a per­son’s THC blood or plasma con­cen­tra­tion and per­for­mance im­pair­ing ef­fects,” and fre­quent pot smok­ers may have THC lev­els ex­ceed­ing 45 ng/mL up­wards of 12 hours af­ter last get­ting high, the Na­tional High­way Traf­fic Safety Ad­min­is­tra­tion states on its web­site.

Wash­ing­ton, D.C., and 28 states, in­clud­ing Ari­zona, have au­tho­rized doc­tors to pre­scribe medic­i­nal mar­i­juana to pa­tients, not­with­stand­ing the drug still be­ing con­sid­ered con­tra­band by the fed­eral government.

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