AZ Court: You Don't Have to Be High to Get a DUI

by Phillip Smith
StoptheDrugWar.org
Feb. 15, 2013

An Arizona appeals court has ruled that marijuana users don't need to be actually impaired to be successfully prosecuted for driving under the influence. The common sense-defying ruling came Tuesday in the case of a man who tested positive for an inactive marijuana metabolite that remains in the body for weeks after the high from smoking marijuana has worn off.

The ruling in Arizona v. Shilgevorkyan overturned a decision by a superior court judge who said that it didn't make sense to prosecute people for driving under the influence if they're not actually under the influence.

The ruling turned on a close reading of legislative intent in writing the state's DUID law. The legislation specified the presence of "the metabolite" of THC, and Shilgevorkyan had argued that lawmakers meant "hydroxy-THC, the metabolite which would indicate current impairment, not carboxy-THC, an inactive metabolite that indicates only usage some time in the past.

The appeals court disagreed, citing its decisions on earlier challenges to the DUID. "The legislature intended to create a 'per se prohibition' and a 'flat ban on driving with any proscribed drug in one's system," the court noted. "We determined that the legislative ban extends to all substances, whether capable of causing impairment or not."

Because the law was drafted to protect public safety, the appeals court said, it should be interpreted broadly to include inactive as well as active compounds.

But Superior Court Commissioner Myra Harris, who had ruled on Shilgevorkyan's behalf, warned in her earlier opinion that the appeals court's interpretation of the law would result in people, including out of state medical marijuana patients, being charged with DUI when they are not impaired.

“Residents of these states, particularly those geographically near Arizona, are likely to travel to Arizona,” Harris said in her 2012 ruling upholding the dismissal. “It would be irrational for Arizona to prosecute a defendant for an act that might have occurred outside of Arizona several weeks earlier.”

Shilgevorkyan's attorney said he plans to appeal to the state Supreme Court.