An appeals court in Arizona recently made headlines when it announced a decision holding that drivers in the state did not have to actually be impaired by marijuana to be charged and convicted with driving under the influence.
The ruling, released earlier this week, involved an Arizona man who had been arrested and was later charged after testing positive for the presence of an inactive marijuana metabolite. The way marijuana (and its primary psychoactive chemical, tetrahydrocannabinol (THC)) works is that the drug itself metabolizes into molecules known as metabolites which reveal that a user has at some point consumed the drug. These molecules can remain in a user’s bloodstream for weeks after smoking the drug but, if they are inactive, do not indicate that a person is still under the influence of the drug.
The appeals court overruled a lower court that reasonably determined it would be ridiculous to prosecute drivers for operating vehicles under the influence in cases where it is clear they were no longer under the influence of any intoxicating substance. The Court reached its conclusion by saying that the legislative intent behind passage of the state’s DUI laws were clear that a metabolite of THC had to be present in a driver’s bloodstream to allow for prosecution for intoxicated driving.
While the defendant’s attorney agreed this was true, he tried to make clear that the legislature surely intended DUI prosecutions to move forward only when hydroxy-THC was present, not carboxy-THC. The difference between the two is critical: hydroxy-THC is the psychoactive metabolite of marijuana meaning it is active and its presence indicates there is actual impairment in a user; carboxy-THC, on the other hand, is an inactive metabolite and exists only when there are no remaining psychoactive properties left to the drug in a user’s system.
The Court said that the Arizona law created a per se prohibition against the presence of any THC metabolites, regardless of their active or inactive state and regardless even of whether they result in intoxication. The Court said it believed the state legislature used such a broad interpretation of the meaning of “intoxicated driving” as a way to protect the public.
Critics of the decision have come out strongly in opposition to the appeals court ruling, and rightly so. The lower court judge who was overruled did not hold back and promptly issued a statement saying that the opinion would ensure that Arizonans were charged with DUI in cases where they are clearly and scientifically not impaired, a ludicrous result that would surely run counter to the true intent of the statute.
Another problem that has been raised is that those from out of state, especially residents of Colorado where marijuana can now be consumed legally, can be arrested and even imprisoned if they pass through Arizona and have even weeks-old marijuana in their system.
Minnesota has a different take on the issue of marijuana intoxication than Arizona. In Minnesota, there is a zero tolerance policy when a person tests positive for the presence of any schedule I & II controlled substance or their metabolites, meaning DUIs can move forward regardless of impairment. However, Minnesota Statutes § 169A.20(1)(7) makes clear that the law does not apply to marijuana and THC metabolites. Though Minnesota does not have a per se law against the presence of marijuana in your system, you can count on charges being filed if an officer or prosecutor believes you were actually impaired due to marijuana use while behind the wheel.