- The Washington Times - Friday, December 23, 2016

The Arizona Court of Appeals ruled this week that medical marijuana patients arrested for driving under the influence of the drug can contest DUI charges by arguing before a judge that they weren’t too high to operate an automobile.

As a result of Thursday’s 2-1 decision, Arizona police must be able to prove that an alleged DUI offender was too impaired to be driving, regardless of the outcome of any blood tests.

The decision stems from from 2013 arrest of Nadir Ishak, an Arizona man who had been stopped by Mesa police after the car he had been driving allegedly drifted into another lane. An arresting officer later testified that Ishak’s eyes were bloodshot and watery, and said that he had admitted to smoking marijuana earlier that day.

Ishak was subsequently charged with one count each of driving while impaired to the slightest degree and driving with marijuana in his body and was ordered to spend 90 days behind bars after a jury found him guilty of the latter.

In Thursday’s decision, however, appellate Judge Diane Johnsen wrote for the majority that Ishak was denied a fair case because a city court judge prohibited him at trial from letting jurors know he possessed a state-issue medical marijuana card at the time of his arrest.

Not only does the 2010 Arizona Medical Marijuana Act authorize patients such as Ishak to have marijuana in their system, but the state Supreme Court decided in 2015 that patients charged with DUI can argue “that the concentration of marijuana or its impairing metabolite in [his or her body] was insufficient to cause impairment,” the appeals court ruled.

An authorized medical marijuana user must be afforded “affirmative defense” upon being charged with a marijuana DUI, the ruling continued, “by showing by a preponderance of the evidence that the marijuana metabolite concentration in his or her system was insufficient to cause him or her to be impaired at the time he or she operated or was in actual physical control of a motor vehicle.”

Tests taken after Ishak’s arrest revealed each milliliter of his blood contained 26.9 nanograms of tetrahydrocannabinol, or THC, marijuana’s high-inducing chemical. Arizona law doesn’t contain any threshold with regards to THC limits, however, and Judge Johnsen acknowledged in Thursday’s ruling that “there is no scientific consensus about the concentration of THC that generally is sufficient to impair a human being.”

“It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects,” and frequent pot smokers may have THC levels exceeding 45 ng/mL upwards of 12 hours after last getting high, the National Highway Traffic Safety Administration states on its website.

Washington, D.C., and 28 states including Arizona have authorized doctors to prescribe medicinal marijuana to patients, notwithstanding the drug still considered contraband by the federal government.

• Andrew Blake can be reached at ablake@washingtontimes.com.

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