Chemicals that can land Arizonans with a DUI linger in the body long after pot-induced impairment has resided.
Unfortunately for medical marijuana patients in Arizona, confusion and loopholes surrounding the state’s medical marijuana law has indirectly forced some to choose between using the drug and keeping their driver’s license.
While the state legalized medical marijuana in 2010, Arizona state law says that if a person has marijuana in his system he is guilty of DUI, regardless of whether that person is a medical marijuana patient. Prosecutors argue that marijuana is technically not prescribed, but is recommended to patients.
One of the biggest issues for states that have legalized medical marijuana laws has been determining how much of the drug a person can have in his system and legally drive.
To check for marijuana in a person’s system, police officers take a blood sample and run tests to look for the presence of marijuana. In the blood test, officials are looking for the presence of two different chemical compounds found in marijuana: Tetrahydrocannabinol (THC), which causes a temporary euphoria and remains in the bloodstream for a few hours, and an inactive chemical, Carboxy-THC, that is created by a person’s body to neutralize THC, which can linger in a person’s system for up to a month.
The problem for Arizona’s medical marijuana patients is that prosecutors don’t view a medical marijuana ID card as a valid defense. So even if a medical marijuana patient only has the inactive Carboxy-THC in his system — meaning he is not necessarily currently high — prosecutors can still charge DUI.
Hoping to change the state’s DUI laws, many of Arizona’s medical marijuana patients who have been charged with DUIs and convicted in municipal courts have appealed their cases to Superior Court, where the judges’ decisions could alter the state’s DUI laws for medical marijuana patients in the state.
Michael Alarid III is an Arizona-based attorney who has represented medical marijuana patients in the state who have been charged with DUIs. He said, “Back in the 90s when those Court of Appeals decisions were handed down, marijuana was a completely illicit substance, illegal in every way.”
He said the problem is that some states, like Arizona, have failed to adjust the state’s DUI laws, like Washington, Colorado and Michigan have.
But Arizona’s Maricopa County Attorney Bill Montgomery said that he does not plan to amend the state’s DUI law to differentiate between metabolites that cause impairment and those that do not. “We do not want to create an incentive to ‘game’ how long it takes for any given metabolite to leave a driver’s system,” he said.
To that Alarid responded by saying, “Carboxy is not an active metabolite, meaning it’s non-psychoactive. It has no effect on the brain and does not cause impairment. In addition to the fairness issue, this doesn’t seem right in a state where citizens passed a medical marijuana law,” he said, adding that, “it really puts an unfair burden on those patients.”
One of the most challenging aspects of marijuana DUI laws is that like blood-alcohol levels, a person’s impairment will be varied since the potency of marijuana can vary, as does a person’s metabolism and the amount they consume or ingest, as well as the frequency of use.
According to a 10-year study in Sweden, which was published in 2004 and examined more than 8,700 DUI drug cases, researchers concluded, “It was virtually impossible to agree upon the concentration of a psychoactive substance in blood that leads to impairment in the vast majority of people,” and found zero-tolerance policies were the most effective way to identify persons who are driving while impaired.
Some states have ignored the researcher’s recommendations and have enacted legislation outlining acceptable amounts of marijuana in a motorist’s system. In Colorado, for example, legislators passed a law that says anyone who tests above 5 nanograms per milliliter for marijuana is presumed to be impaired.
Washington state, who like Colorado, legalized the use of recreational marijuana this past November, also has a 5 ng/mL limit.
According to the Marijuana Policy Project, a medical marijuana advocacy group, while the exact blood level of THC that results in impaired driving is not known, it’s estimated from the Swedish study that drivers with 5 ng/mL in their systems were found to be at no greater risk to crash than those drivers who were drug-free. MPP says the increased risk for crashing or impaired driving begins to increase between a THC blood level between 5 to 10 ng/mL.
“Because smoked THC is rapidly transferred into the bloodstream, THC levels in the blood rise quickly immediately after inhalation. Depending on the dose, THC typically reaches peak concentrations of more than 100 ng/mL five to 10 minutes after inhalation and then rapidly decreases to between one and four ng/mL within three to four hours. However, heavy marijuana users’ blood can contain detectable amounts of THC even after periods of abstention.”
While better for medical marijuana patients than Arizona’s zero-tolerance policy, defense attorneys and marijuana advocates in Colorado caution that 5 nanograms is an arbitrary number that may or may not be indicative of a person’s impairment.
“We need to stop looking at a meaningless number, and in the case of Arizona, not only a meaningless number but a cruel and unusual application of it: you punish somebody on a Monday morning for them killing their pain on a Friday night,” said Lenny Frieling, a Colorado attorney and medical marijuana advocate.
“I don’t want impaired drivers on the road. The key in my mind is looking at whether somebody really is or is not impaired. If they’re impaired, I don’t care which drug impaired them.”
Frieling is currently working to develop a mobile app that would help determine whether or not a person was impaired by testing a person’s memory and balance. But before the app goes to the marketplace, it will need to be tested in clinical trials, and further research is needed on marijuana concentrations.
Earlier this year in Michigan, the state’s Supreme Court reversed an Appeals Court decision by ruling that the state’s medical marijuana law allowed motorists to have traces of marijuana in their bloodstream while driving, as long as they weren’t impaired.
“The MMMA (Michigan Medical Marihuana Act) shields registered patients from the internal possession of marijuana,” the court ruled. “The MMMA does not define what it means to be ‘under the influence’ but the phrase clearly contemplates something more than having any amount of marijuana in one’s system and requires some effect on the person.”