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11/6/2013 10:22:00 AM
Prosecutor pushes for tougher standard on marijuana driving impairment

Howard Fischer
Capitol Media Services

PHOENIX -- A prosecutor argued Tuesday there's nothing wrong with charging a motorist who smoked marijuana up to a month ago with driving while drugged.

In arguments to the Arizona Supreme Court, Susan Luder acknowledged that Carboxy-THC, a secondary metabolite of marijuana, can show up in blood tests for a month after someone has used the drug. And she did not dispute the concession of her own expert witness that the presence of that metabolite does not indicate someone is impaired.

But Luder, a deputy Maricopa County attorney, told the justices the Legislature is legally entitled to declare that a positive blood test for Carboxy-THC can be used to prosecute someone who, if convicted, can lose a driver's license for a year.

That contention drew questions from Chief Justice Rebecca Berch who wondered how far that logic can be stretched. She asked Luder whether her argument falls apart if it turns out that Carboxy-THC can be measured a year from someone smoking the drug -- or even five years.

Luder said she understands arguments about why it may not be fair to charge someone with drugged driving potentially 30 days after they used marijuana.

"But that's up to the Legislature to decide,' she said. And Luder said lawmakers are free to decide that any evidence of any metabolite that started out as marijuana -- and its psychoactive element THC -- is evidence of driving with drugs in the system.

Justice Robert Brutinel also questioned where the line is drawn. He said some otherwise illegal drugs eventually metabolize all the way down to water.

"Where do you draw the line to when the metabolite's no longer illegal?' he asked.

"It's hard to say,' Luder responded.

The case has significant implications beyond whether Hrach Shilgevorkyan can be charged with breaking the law.

It most immediately affects whether any of the 40,000 Arizonans who are legal medical marijuana users will effectively be banned from driving, given how long metabolite remains in the system. And it also makes potential criminals out of anyone else who drives and also has used marijuana in the last 30 days, including those who might be visiting from Washington or Colorado where recreational use of the drug is legal.

According to court records, Shilgevorkyan was stopped by a Maricopa County deputy sheriff in 2010 for speeding and making an unsafe lane change. The officer charged him with suspicion of driving under the influence and took him to the police station for a blood sample.

That sample, drawn about 90 minutes after he was stopped, showed the presence of Carboxy-THC. He was charged with violating a law which makes it a crime to driving while there is any illegal drug or its metabolite in the body.

A trial judge threw out the charge. But the Court of Appeals said the laws on impaired driving "must be interpreted broadly.'

Attorney Michael Alarid said that ruling effectively bans driving by anyone with the slightest amount of Carboxy-THC in the blood, "which is an absurd result.'

But Justice Scott Bales said the fact remains that anyone who tests positive for that drug had, in fact, used marijuana. And he said there is no way for police to "extrapolate backwards' to determine exactly when that person was impaired.

"If we don't know that, wouldn't it be reasonable for the Legislature to prohibit driving while you have Carboyx-THC in your system?' Bales asked.

The judge acknowledged that some people who test positive for Carboxy-THC never drove when they were impaired. But he said it may also be true that Hydroxy-THC, the primary metabolite which is psychoative, dissipates quickly into Carboxy-THC.

"And so you're going to miss some people who actually were under the influence at some point but by the time the sample's taken, all that's detectible is Carboxy,' Bales continued. "And if that's true -- if it's a choice between erring on over-inclusive or under-inclusive -- why isn't that ... a policy question for the Legislature rather than one for us?'

Alarid, however, said the only issue is whether there is specific evidence of impairment while someone is driving. And he said that labs can test for Hydroxy-THC, though he acknowledged most police agencies do not and simply rely on a positive test for Carboxy-THC.

"It casts the net too large,' Alarid said, saying it "criminalizes otherwise legal conduct.' Anyway, he argued, a ban on driving with Carboxy-THC in the blood is not rationally related to the purpose of the statute, which is to protect the public from "impaired' drivers.

Luder, however, rejected Alarid's contention that it's absurd to charge someone with Carboxy-THC in the system with driving under the influence of drugs. She said it is undisputed that metabolite is clearly a derivative of THC, the psychoactive element in marijuana.

"What would be absurd is to narrow the net that was cast by the Legislature when the statute was imposed,' she told the justices.

The justices gave no indication when they will rule.

Taylor Waste

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Reader Comments

Posted: Thursday, November 21, 2013
Article comment by: Scientific Studies

Studies Show Marijuana Consumption Not Associated With Dangerous Driving, May Lead to Safer Drivers
May 21, 2013

Anyone who consumes cannabis on a regular basis knows that it doesn’t make you a dangerous driver. Many people find that it makes them a safer, more focused driver one that’s more aware of their surroundings and the dangers associated with controlling tons of gasoline-filled metal. Not only has this been an anecdotal truth for as long as cars and cannabis have been paired, science has also been clear that consuming marijuana doesn’t make you a dangerous driver, and may make some people safer drivers. More research is needed, but it’s hard to deny that of the research we have, marijuana hasn’t been found to increase a person’s risk of an accident. To back this claim up, here’s a list of studies and research conducted on this very topic, some of which were funded by national governments in hopes of different results.

Studies Show Marijuana Consumption Not Associated With Dangerous Driving, May Lead to Safer Drivers

There was no indication that cannabis by itself was a cause of fatal crashes.” REFERENCE: K. Terhune. 1992. The incidence and role of drugs in fatally injured drivers. Washington, DC: US Department of Transportation National Highway Traffic Safety Administration, Report No. DOT HS 808 065.

“Drivers under the influence of marijuana retain insight in their performance and will compensate when they can, for example, by slowing down or increasing effort. As a consequence, THC’s adverse effects on driving performance appear relatively small.”
U.S. Department of Transportation study Marijuana and actual driving performance, 1993

“Evidence from the present and previous studies strongly suggests that alcohol encourages risky driving whereas THC encourages greater caution”
University of Adelaide study Marijuana’s effects on actual driving performance, 1995

“Role of cannabis in motor vehicle crashes.” Epidemiologic Reviews 21: 222-232. The more cautious behavior of subjects who have received marijuana decreases the impact of the drug on performance, whereas the opposite holds true for alcohol.” REFERENCE: A. Smiley. 1999. Marijuana: On-Road and Driving-Simulator Studies.

“There is no evidence that consumption of cannabis alone increases the risk of culpability for traffic crash fatalities or injuries for which hospitalization occurs, and may reduce those risks.”
Research paper published in Epidemiologic Reviews Role of cannabis in motor vehicle crashes, 1999

There was a clear relationship between alcohol and culpability. In contrast, there was no significant increase in culpability for cannabinoids alone. REFERENCE: Logan, M.C., Hunter, C.E., Lokan, R.J., White, J.M., & White, M.A. (2000).

Few studies report increased accident risk. REFERENCE: UK Department of Environment, Transport and the Regions (Road Safety Division). 2000.

“At the present time, the evidence to suggest an involvement of cannabis in road crashes is scientifically unproven. REFERENCE: G. Chesher and M. Longo. 2002.

“Cannabis leads to a more cautious style of driving. Cannabis alone, particularly in low doses, has little effect on the skills involved in automobile driving.” REFERENCE: Canadian Senate Special Committee on Illegal Drugs. 2002.

“The evidence to suggest an involvement of cannabis in road crashes is scientifically unproven.”
Research paper Cannabis and Cannabinoids: Pharmacology, Toxicology, and Therapeutic Potential, 2002

“Although cognitive studies suggest that cannabis use may lead to unsafe driving, experimental studies have suggested that it can have the opposite effect.”
U.S. National Library of Medicine The Effect Of Cannabis Compared With Alcohol On Driving, 2009 http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2722956/

“No differences were found during the baseline driving segment (and the) collision avoidance scenarios,”
Research published in the Journal of Psychoactive Drugs, 2010

“20 years of study has concluded that marijuana smokers may actually have fewer accidents than other drivers.”
Top 10 Reasons Marijuana Users Are Safer Drivers

Risk of severe driver injury by driving with psychoactive substances
Accident Analysis & Prevention Volume 59, October 2013, Pages 346–356

Drunk Drivers Are 30 Times More Likely To Get In An Accident Than Cannabis Consumers - August 2, 2013
The study found that those with a blood alcohol level of 0.12% were over 30 times more likely to get into a serious accident than someone who’s consumed any amount of cannabis.

“Cannabis alone, particularly in low doses, has little effect on the skills involved in automobile driving.”
Canadian Senate Special Committee on Illegal Drugs Cannabis: Summary Report
https://www.dmt-nexus.me/Files/Books/General/Cannabis And Cannabinoids - Pharmacology,Toxicology And Therapy.pdf

There is no evidence that consumption of cannabis alone increases the risk of culpability for traffic crash fatalities or injuries for which hospitalization occurs, and may reduce those risks. REFERENCE: M. Bates and T. Blakely. 1999.

Posted: Tuesday, November 12, 2013
Article comment by: Dear Tromping on the Constitution

Yes, she probably would like "legislation requiring mandatory background checks and registration exceptions to a our 2nd Amendment rights."

That would give her even more excuse to violate 4th and 5th Amendment rights as well--not to mention the 1st's right to free speech and assembly that the 2nd is intended to defend.

Posted: Saturday, November 9, 2013
Article comment by: Times are a'changing....

The last poll showed 58% of Americans want to legalize marijuana. The tide is finally shifting as many Americans have seen the devastation that The War On Drugs has caused. Just about every one has someone they know or a family member who has been arrested for pot. The consequences can be life altering. The teacher will lose her teaching certificate, a nurse will lose her license, and many will be fired by their employer for being arrested. People lose their jobs when their security clearance is revoked. All because they smoked marijuana and were caught by the police.

Deputy Maricopa County Attorney Susan Luder needs to accept that medical marijuana is legal, as voted in by We The People. Stop spending our tax dollars on frivolous cases like this and go prosecute some real criminals.

Posted: Thursday, November 7, 2013
Article comment by: Tromp on the Constitution

The logic presented above, roughly, says it is:
1. Okay to violate 4th Amendment
(Unreasonable search)
2. Okay to violate 5th Amendment
3. Okay to violate 8th Amendment
(Cruel and unusual punishment)
all, under the guise of detecting a crime.

I can't help but wonder if Ms. Luder would also justify legislation requiring mandatory background checks and registration exceptions to a our 2nd Amendment rights?

This could also help detect crime, right?

Posted: Wednesday, November 6, 2013
Article comment by: mixed up priorities

what a warped sense of life in 2013. I would say grow up ,but i'm sure you're probably too old and stuck in the past with your old data. what a dried up and stale republican u must be. I don't even feel sorry for u because you've made your life about ignorance and stifling others.

Posted: Wednesday, November 6, 2013
Article comment by: T.J. O'Malley

Suspend for a year for Marijuana DUI, and 90 days for drunk driving. I think most police officers can tell when someone is stoned, I have asked a few about the light test, I have been told that your pupils contract slower when your stoned than when your not. But a year suspension for pot, and only ninety days for booze is kinda backwards.

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