Sanity Restored In Marijuana DUI Cases

Posted by Richard Lawson | Apr 25, 2014 | 0 Comments

The most important legal decision of the week comes from the Arizona Supreme Court in a marijuana DUI case.  The background in this case is that in many states, including Georgia, people are charged with driving under the influence of marijuana with the only evidence being the metabolites (byproduct) of the marijuana in their blood.  On it's face that may seem like it makes sense.  You cannot have the byproduct of the marijuana without consumption.

However, a simple understanding of the metabolism of marijuana shows the utter folly of prosecuting people based on consumption.  The issue is "being under the influence," not being under the "consumption" of marijuana.  Marijuana metabolites stay in a person's blood for at least 4 weeks and often for up to 8 weeks.  Yet, the marijuana only impairs a person for a short period of time.

To bring a little science into the discussion, there are two types of marijuana metabolites relevant to this discussion, the Carboxy-THC and Hydroxy-THC metabolites.  Carboxy-THC metabolites are inactive and non-impairing. They are the metabolites that remain in a person's system for weeks after consumption and weeks after a person was actually impaired. The Hydroxy-THC metabolite is the actual metabolite that has a psychoactive affect on a person.

Here is the kicker, in places like Georgia where no one seems to actually care if a person is impaired, until recently they never even tested for the Hydroxy-THC metabolite.  It was good enough for government work to just test of the Carboxy-THC and then use that result to imply that a person was surely under the influence to have whatever reading they had.  Our crime lab "scientists" have testified time after time that the Carboxy-THC metabolite showed either recent use or regular use, and that combined with the officer's description of behavior resulted in convictions for DUI (which is all the State cared about).

What was missing in this equation is actual proof of impairment because it was just too difficult for the people at the Georgia Crime Lab to actually care enough to test for the Hydroxy-THC metabolite that places like Arizona's crime lab seems able to do.  My position is they people at our crime lab in Georgia do not care about the guilt or innocence of accused DUI drivers or they would have always tested for the actual impairing marijuana metabolite.

The even worse reality goes back to the Arizona case.  In Arizona they test for Hydorxy-THC. I have seen their crime lab reports.  However, their DUI statute, like the one in Georgia, allowed for a conviction based on the presence of metabolites of marijuana without differentiation insofar as whether they impair or not.

The miracle (insert sarcasm) in the Arizona decision is when their Supreme Court stated that: "We are not persuaded and reject the State's argument that § 28- 1381(A)(3) “creates a flat ban on the presence of any drug or its metabolite in a person's body while driving or in actual physical control of a vehicle,”

Good for the court to point out the obvious to which anyone should agree.  They "reject" convicted someone of DUI when they were not impaired.  It took the Supreme Court of Arizona to "reject" convicted someone who was innocent.  That means the prosecutor wanted to convict someone innocent, the trial court said that was 'hunky-dory,' their court of appeals said 'good enough for government work,' and it took their supreme court to "reject" convicting the innocent.  Wow.

As for our appellate and trial courts, I have no expectation that they will make rulings with any intellectual honestly.  When it comes to DUI, most Georgia DUI Defense Attorneys fight both the prosecutor and a second prosecutor dressed in a black robe. No one cares about this issue in Georgia.  Our Judges run for election every four years and are unconcerned with anything that could possibly make them look weak on DUI.  If a few innocent people have to be convicted so they can keep their jobs, that's also hunky-dory.

If you have been charged with a Marijuana DUI in Georgia, contact my office today. We are here to help. Call us 24/7.

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Richard Lawson

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