The term DUI, or driving under the influence, is commonly associated with the use of alcohol, but a DUI charge can also be given out for driving under the influence of drugs such as marijuana. But what’s concerning for many marijuana users, especially medical marijuana users, is that based on how the laws are written, a person can be charged with a DUI even if they are not high at that moment — all police have to find is a trace of a marijuana ingredient in their system.
To check for marijuana in a driver’s system, police take a blood sample and run tests. Blood tests can detect two important chemical compounds from marijuana: Tetrahydrocannabinol (THC), which makes a person high and remains in the bloodstream for hours, and an inactive chemical, Carboxy-THC, that’s created by a person’s body to neutralize THC, which can linger in a person’s system for up to a month.
It sounds odd to be charged with driving under the influence a month after a person ingested marijuana, but it’s a reality for drivers in Arizona and at least nine other states, including Utah, Iowa, Indiana, Delaware and Rhode Island, who are going to jail, paying big fines and losing their licenses even though blood tests prove they were not high, because lawmakers failed to consult scientists before the marijuana DUI rules were created.
“It makes no sense,” says attorney Michael Alarid III, who is representing a man charged in Arizona. “But this is how prosecutors and the courts are interpreting the law. And the legislature doesn’t appear to want to change it. So we’re hoping we can get the issue before the state Supreme Court.”
“As things stand,” Alarid says, “a person from Arizona could go on a snowboarding trip to Colorado or Washington state, where marijuana is legal for recreational use, and then a month later he could be driving in Arizona, get stopped and be convicted of DUI.”
Based on Arizona state law, if a person is found to have either of these compounds in their blood, they are guilty of a DUI. The state’s Court of Appeals recently upheld the law, which states that if even a “metabolite” of a drug is found in a person’s blood, they are guilty of a DUI.
“Back in the 90s when those Court of Appeals decisions were handed down, marijuana was a completely illicit substance. Illegal in every way,” Alarid said.
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.”
Some states, like Washington, have recognized the science involved in the blood test results and have created an acceptable limit for drugs like marijuana in the bloodstream, similar to a blood alcohol content reading.
“An alcohol DUI in Arizona gets your license suspended for 90 days,” Alarid says. “After 30 days, you can drive to work and school. On the other hand, a drug-related DUI, like marijuana, gets you the same fines and jail time but revokes your license for a year. That means a person who wasn’t impaired could be punished more harshly than someone who was.”
“Carboxy is not an active metabolite, meaning its non-psychoactive. It has no effect on the brain and does not cause impairment,” said Alarid. “In addition to the fairness issue, this doesn’t seem right in a state where citizens passed a medical marijuana law,” adding that “it really puts an unfair burden on those patients.”
It’s the prospect of facing jail time, having to pay large fines and losing their driver’s license that has some medical marijuana patients opting to not use the drug, even though it helps them.
EJ Montini is a columnist for the Arizona Republic. He wrote a column discussing the DUI issue and pointed out that in Arizona, the politicians who could revise the DUI statute “hate” the medical marijuana law, as does the county attorney.
But that isn’t stopping Alarid from petitioning the state’s Supreme Court to make the DUI laws more specific. Alarid petitioned the Arizona Supreme Court at the end of March 2013, and he should learn in a few months whether or not the justices agree to hear the case.