As everyone knows, a D.U.I. may involve driving under the influence of substances other than alcohol. Also, there are a substantial number of D.U.I. cases were the driver has consumed alcohol and a proscribed drug or where the individual has only consumed a proscribed drug such as Marijuana. In Phoenix, its surrounding cities as well as the entire State of Arizona, Police Officers and Highway Patrol Officers are constantly pulling people over and charging them with D.U.I.’s. This article addresses the situation where you have been charged with driving under the influence of a Metabolite of Marijuana. If this happens to you, please consult an experienced Arizona D.U.I. attorney.
Under Arizona Revised Statute § 28-1381(A)(3) it is unlawful for a person to drive or be in actual physical control of a vehicle in this state while there is any drug defined in § 13-3401, or its metabolite in the persons body.” A.R.S. § 28-1381(A)(3). The only drug defined in A.R.S. § 13-3401 that relates to Marijuana is “tetrahydrocannabinol” which is more commonly known as THC. See A.R.S. § 13-3401(4)(b).
The main issue(s) under Arizona Law is: (1) what is the meaning of metabolite, (2) does A.R.S. § 28-1381(A)(3) include the plural form of "metabolite" and (3) did the Arizona State Legislature intend to penalize the existence of non-impairing metabolites. A metabolite is any substance produced during metabolism. On its face there is no notice that A.R.S. § 28-1381(A)(3) included any and/or all metabolites of drugs listed in A.R.S. § 13-3401. Lastly, there is no indication that the Arizona State Legislature intended to include non-impairing metabolites of the drugs listed under A.R.S. § 13-3401.
Tetrahydrocannabinol, which is commonly known as THC, is psychoactive, meaning it has an effect on the brain and causes impairment. THC is metabolized in the system and is broken down into THC’s metabolite, which are two monohydroxy compounds known as 11-Hydroxy-THC and 8-Hydroxy-THC. It also is important to note that Hydroxy-THC is active but it may not achieve appreciable blood concentrations and probably does not contribute significantly to the acute effects of THC after smoking. As such, it may have an effect on the brain and could potentially cause impairment. From there, Hydroxy-THC breaks down further into its metabolites 8-alpha-OH-THC and 8,11-dihydroxy-THC, these metabolites are not known to be active.
The fifth metabolite is 11-Carboxy-THC and is a bi-product of 11-hydroxy-THC. Carboxy THC is not psychoactive and can remain in a person's system for several weeks however, it has no effect on the brain and does not cause impairment. Carboxy-THC is the final step in the breakdown of marijuana and is excreted from the body through the urine and feces. When urine is tested for marijuana use rather than blood, Carboxy-THC is the only substance that can be detected because it is the substance that is excreted by the body. Carboxy-THC can remain in the body for approximately seven (7) to seventy-two (72) days while THC and Hydroxy-THC remain in the body for only a matter of hours. Fortunately, when blood is taken for testing, Arizona State labs usually test for all three substances.
If the term “metabolite” is construed to include inactive Carboxy-THC, there is potential for a person to be prosecuted for driving as much as a month after ingesting marijuana. This is more akin to a status offense. Here if a police officer knew you were prone to smoke marijuana, s(he) could stop your vehicle, charge you with a D.U.I. because you would undoubtedly have the presence of 11-Carboxy-THC in your system even though you were not impaired by its presence in your blood. Further, a person who passively ingests Marijuana could have testable levels of Carboxy-THC in their system. Again, penalizing a person for having Carboxy-THC in their system could not be what the Arizona State Legislature intended when it contemplated this statute.
You should know that it is very hard to have a Judge dismiss a D.U.I. charge in Arizona especially when you are charged with having Marijuana or its metabolite in your system at the time of driving. To win a case like this, you need an experienced Arizona D.U.I. attorney. Your attorney should have a thorough understanding of the science behind THC and the Arizona D.U.I statutes. It is also important to note that if you have THC and 11-Carboxy-THC in your system, it will be very hard if not impossible to persuade a Judge to dismiss your D.U.I "drug" case.
Part 2 of this series will discuss how to successfully fight a D.U.I. drug charge when the officer never stated s(he) thought you were under the influence of anything but alcohol.
Please do not drink and drive...Jocquese L. Blackwell