Yesterday the
Arizona Supreme Court
ruled that people whose blood contains a secondary, inactive
byproduct of marijuana can drive without violating state law. That
means cannabis consumers are less likely to be charged with driving
under the influence of a drug (DUID) when they are not actually
impaired.
Arizona, one of seven states with a “zero tolerance” DUID law,
forbids driving by anyone whose body contains any amount of an
illegal drug “or its metabolite.” The question for the Arizona
Supreme Court was whether “its metabolite” includes carboxy-THC,
which is not psychoactive and can be detected up to a month after
consumption of cannabis. The court deemed the phrase ambiguous,
since it could be understood as referring only to hydroxy-THC, a
primary metabolite that is psychoactive. In light of the
legislature’s aim to prevent impaired driving, the court
said, that interpretation makes more sense, especially since
the alternative, including any chemical trace left by the
metabolism of an illegal drug, would lead to “absurd results”:
This interpretation would create criminal liability
regardless of how long the metabolite remains in the
driver’s system or whether it has any impairing effect. For
example, at oral argument the State acknowledged that, under
its reading of the statute, if a metabolite could be detected
five years after ingesting a proscribed drug, a driver who
tested positive for trace elements of a
non-impairing substance could be prosecuted.
The broader interpretation would therefore “criminalize
otherwise legal conduct”: medical use of cannabis permitted by
state law. “Because Carboxy-THC can remain in the body for
as many as twenty-eight to thirty days after ingestion,” the
court noted, “the State’s position suggests that a
medical-marijuana user could face prosecution for driving any
time nearly a month after they had legally ingested marijuana.”
The court noted that a broad reading of “its metabolite” could
have absurd results when applied to other drugs as well:
This interpretation would allow the prosecution of an individual
who drives after ingesting a legal substance that shares a
non-impairing metabolite with a proscribed substance. For example,
serotonin, a legal substance, and the proscribed drug bufotenine [a
psychedelic found in fly agaric mushrooms and the skin of certain
toads] share a common metabolite, 5-hydroxindoleactic acid
(“5-HIAA”)….Under the State’s interpretation of “metabolite,” it
could prosecute a driver who had 5-HIAA in his or her system after
ingesting a legal serotonin supplement or, for that matter, whose
blood contains 5-HIAA as a byproduct of naturally produced
serotonin.
This decision is reminiscent of a 2010 ruling
in which the Michigan Supreme Court narrowly interpreted that
state’s zero-tolerance DUID law, which says a person may not drive
“if the person has in his or her body any amount of a controlled
substance listed in schedule 1,” which includes marijuana, THC, and
“their derivatives.” The Michigan Supreme Court said carboxy-THC
does not count as a “derivative.”
Despite these rulings, it is still possible for unimpaired
marijuana consumers to be convicted of DUID in Arizona and
Michigan, since any amount of active THC in the blood will suffice.
In fact, such convictions are possible even under less strict per
se standards, such as Washington’s new
rule equating five nanograms of THC per milliliter of blood
with impairment, which makes it illegal for many medical users to
drive even when they are perfectly capable of doing so safely.
Given variation in the way people respond to psychoactive
substances (including alcohol) , per se standards are bound to
unfairly tar some people as public menaces That is a good reason to
require additional proof of impairment—unless you are using road
safety as an excuse to punish people for consuming politically
incorrect drugs, in which case per se (and ideally zero tolerance)
is the way to go.
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