As an Arizona DUI marijuana defense attorney, I have fielded numerous inquiries from individuals seeking to have their old DUI – marijuana convictions overturned, set aside or expunged.
On April 22, 2014, the Arizona Supreme Court issued a ruling declaring that from that day forward: “Drivers cannot be convicted of the [DUI – marijuana] (A)(3) offense based merely on the presence of a non-impairing metabolite that may reflect the prior usage of marijuana.” State ex rel. Montgomery v. Harris, 234 Ariz. 343, 347, 322 P.2d 160, 164 (2014).
Unfortunately, the Harris decision was silent as to whether this modification in Arizona DUI law would apply to the thousands of people who had previously been convicted of DUI – marijuana based solely on an inactive metabolite.
Science teaches us that alcohol and most illegal drugs are gone from the body within a matter of hours after being ingested. Marijuana metabolites are the remnants of THC left in the bloodstream after marijuana has been processed and broken down by the body. Even after the body is no longer affected by THC, there are still modified remnants of THC flowing through the bloodstream. Even prosecution experts agree that many of these lingering remnants of THC do not impair a person’s ability to drive. For some marijuana users, non-impairing THC metabolites can remain in the body for several weeks. In spite of the undisputed science, for the decades prior to the Harris decision, the law in Arizona was that even a non-impairing metabolite of THC was sufficient to support a DUI – marijuana conviction.
The Arizona Court of Appeals recently addressed the issue of the retroactive application of the Harris decision in <u, 237 Ariz. 342, 350 P.3d 846 (Div. 2, May 2015). Prior to the Harris decision, Angelica Werderman had been convicted in Pima County of felony DUI – drug based solely on an inactive metabolite of cocaine. After the Harris decision was published, Ms. Werderman filed a petition for post-conviction relief pursuant to Rule 32.1(g) of the Arizona Rules of Criminal Procedure. In her petition, Ms. Werderman claimed that Harris constituted a “significant change” in Arizona law that justified overturning her conviction. Ms. Werderman asserted that, regardless of which drug is at issue, inactive metabolites can never justify a DUI conviction.
In denying Ms. Werderman’s petition, the Arizona Court of Appeals noted that the Arizona Supreme Court did not overrule “any binding precedent” in Harris. 350 P.3d at 848. In fact, all the Harris decision did was to define the ambiguous phrase “its metabolite” contained in the DUI statutes. As such, Harris was “not a significant change in the law” but merely judicial interpretation of an existing statute. 350 P.3d at 848. Unfortunately, unless the Arizona Supreme Court overrules the Wederman decision, all DUI – marijuana convictions prior to April 22, 2014 that were based solely on inactive metabolites will probably remain unchanged.
The consequences of a DUI – drug conviction can linger for many years. If you or a loved is ever stopped for, or charged with, driving under the influence of drugs, please call our office immediately 24/7 at (480) 833-2341 to speak with an experienced DUI Marijuana defense attorney.
Attorney Profile: Brian D. Strong – Senior Associate
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