Arizona has one of the toughest stoned driving laws in the country – so tough you could go to jail for driving weeks after smoking. Now one county prosecutor is fighting to keep it that way.

Police LightsSusan Luder, deputy Maricopa County attorney, argued before the state Supreme Court on Nov. 12 that her office should be able to charge drivers stopped with any amount of 9-carboxy-THC in their blood.

Carboxy-THC is a secondary metabolite left behind after cannabis use. Unlike THC, the primary psychoactive chemical in pot, carboxy-THC sticks around for days or even weeks. In theory, technology could be developed to detect weed metabolites months or even years after use.

Arizona voters approved medical marijuana in 2010 by a narrow margin. The law they passed prohibits driving with any amount of carboxy-THC. It’s a zero-tolerance policy, similar to those adopted by nine other states.

In these states, it doesn’t matter that your blood test shows you weren’t high at the time of your arrest. The laws are applied strictly, and any trace of metabolites can result in fines, jail and license suspensions.

The case that reached the Arizona Supreme Court in November started with the arrest of a man who had trace amounts of carboxy-THC in his system. The man was charged with DUI, and though the charges were ultimately dismissed, a higher court ruling declared that impaired-driving laws “must be interpreted broadly.”

In appealing the ruling, Alarid asked the Supreme Court to overturn a decision by the state Court of Appeals from the 1990s, when marijuana was entirely illegal.

“The courts are supposed to interpret statutes as to avoid absurd results,” he said. “It’s possible in Arizona to be convicted of a DUI when, in fact, a blood test proves a person is not impaired.”

In her argument before the Supreme Court, Luder agreed the driver’s positive result for carboxy-THC didn’t prove he was impaired. But she said that didn’t matter under the law. The state Legislature has the authority to outlaw driving with any trace of cannabis, even if it’s not fair, she said.

Alarid pointed out that this interpretation of the law could impact thousands of medical marijuana patients and drivers from other states where pot is legal.

And Chief Justice Rebecca Berch asked a question that highlighted a potential problem for courts in coming years.

“Let’s assume that scientific testing develops and you can find carboxy-THC remaining in the system for a year, does that have any effect on your position here today?” Berch asked Luder. “Let’s now assume that it’s five years that you can test THC levels – carboxy-THC remaining in the system, does there come a point where the statute lacks a rational basis?”

Luder dismissed Berch’s question as unrealistic.


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