Pubdate: Thu, 21 Feb 2013
Source: Tucson Weekly (AZ)
Copyright: 2013 Tucson Weekly
Contact:  http://www.tucsonweekly.com/
Details: http://www.mapinc.org/media/462
Author: J.M. Smith

LINGERING ISSUES

Is It Fair That Someone Can Be Prosecuted for Driving Under Last 
Week's Influence?

Once there was a scientist named Friedrich Wurst.

There probably still is, but back in 2003, he did a study of alcohol 
metabolites in the corpus humanum. He found that one, ethyl 
glucuronide (EtG), is an excellent indicator that a person had a 
drink up to 80 hours prior to testing. EtG is among a new generation 
of biochemical markers that could be used to document alcohol use 
among professionals who have to prove sobriety for licensure (some 
doctors) and folks in treatment programs, Wurst said.

This is very good news in Arizona, because EtG would allow the state 
to find out you had a drink more than three days ago-long after the 
alcohol was gone from your system and long after any impairment could 
possibly exist. Then when a sheriff's deputy pulls you over for 
something entirely unrelated, he could give you a DUI.

Wait ... give you a DUI for drinks last week? The state wouldn't do 
that, would it?

No, because cops don't test for metabolites of alcohol; they test for 
alcohol. It's the alcohol that causes impairment, not the 
metabolites. But they would give you a DUI for smoking cannabis last 
week-or even last month-because they do test for metabolites of 
cannabis, even the ones that indicate past use but not recent use.

It happened in Mesa in December 2010.

A sheriff's deputy stopped Hrach Shilgevorkyan for speeding and 
unsafe lane use, then (presumably suspecting impairment) took him to 
a command post for processing. Shilgevorkyan then agreed to a blood 
test, which showed his blood was devoid of alcohol but did contain 
carboxy-tetrahydrocannabinol (carboxy-THC), a metabolite of cannabis 
that can linger in your blood for weeks.

So Shilgevorkyan got a DUI despite his blood not containing 
hydroxy-tetrahydrocannabinol (hydroxy-THC), a metabolite that 
indicates recent use and thus possible impairment. He got a lawyer 
and fought the DUI in Justice Court, where it was dismissed. The 
state then appealed to Superior Court, where a judge agreed with the 
Justice Court and upheld the dismissal.

Nonsense, said the state and William Montgomery, the Maricopa County 
attorney who is a known cannabis hater. They appealed again, to the 
Arizona Court of Appeals. Score! On Feb. 12, the Court of Appeals 
upheld the DUI, and the state's case makes perfect sense given the law. Wtf?

Arizona Revised Statute 28-1381 says "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 section 13-3401 or its metabolite 
in the person's body." Cannabis is right there in section 13-3401, 
along with alpha-ethyltryptamine, 4-bromo-2, 
5-dimethoxyphenethylamine, and the dreaded Bufotenine. So the law 
seems clear-having carboxy-THC in your blood while driving is illegal.

The problem is that it's ridiculous.

Section 13-3401 of the Arizona Revised Statutes lists scores of 
drugs, including oxycodone, codeine and morphine. I certainly agree 
that people shouldn't drive under the influence of these drugs. Duh. 
But having metabolites in your system doesn't mean you're impaired. I 
suspect if you prick all the judge arms in the Arizona Court of 
Appeals, you'd find some metabolites of some of these drugs-maybe 
lingering molecular evidence that a Good Judge had popped an Oxy or 
two last week for a bad back or dosed on some codeine last month for 
a neck twisted during a golf outing.

Should we fire them for ruling under the influence? No, we shouldn't, 
because that would be ridiculous. Just as ridiculous as charging 
Hrach Shilgevorkyan with DUI for cannabis he smoked weeks and weeks 
before he was driving.

Ridiculous, yes. But this is Arizona.
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MAP posted-by: Jay Bergstrom