By Christopher Zoukis
On March 12, 2013, USA Today ran an opinion piece entitled “Drivers Aren’t High, Still Busted for DUI.”  This editorial, authored by EJ Montini, presented a very troubling situation which is repeating itself time and time again in numerous cities across the country.  Simply stated, persons who have utilized drugs — say, marijuana — are being charged and convicted of Driving Under the Influence (DUI) even though they are no longer under the influence, but just have chemical traces of the drug still in their blood stream.  In some cases, the person hasn’t even used the substance in weeks and is clearly not impaired.

Here are excerpts from the editorial which adequately summarize the situation:

“Drivers from Arizona and at least nine other states, including Utah, Iowa, Indiana, Delaware and Rhode Island, are going to jail, paying big fines and losing their licenses after having gotten driving-under-the-influence citations when blood tests prove they were not high.

“Blood tests can detect two important chemical compounds that come from marijuana.  One of them, THC, makes a person high and lasts for hours.  The other inactive chemical, created as your body neutralizes THC, can linger in a person’s system for up to a month.

” ‘As things stand,’ ” [says Arizona Attorney Michael Alarid III], ” ‘a person could go on a snowboarding trip to Colorado or Washington state, where marijuana is legal for recreational use, and then a month later he could be driving in Arizona, get stopped and be convicted of a DUI.’ “

What makes the problem even worse is the response from the legal and legislative community at large.  Even though prosecutors, judges, and legislators understand that people are going to jail for DUIs when they are not under the influence, they are still willing to allow these events to transpire.  They appear to be utilizing the letter of the law to fulfill their own political and, possibly, moral objection to allowable conduct (i.e., smoking marijuana in locations where it is legal).  By and large, the only legal professionals to stand up for these criminal defendant’s rights, not surprisingly, are criminal defense attorneys.

As the editorial illuminates, this legal situation is here to stay, at least in certain states.  While Mr. Alarid persuaded a lower court to dismiss the initial charges against his client after it was proven that his client was literally and functionally sober, yet intoxicated by the statute’s definition, he was not successful in the end.  The Court of Appeals reinstated the conviction on the basis that the statute made no distinction as to when the ingestion of the chemicals and the driving occurred.  Mr. Alarid and his client might have fared better had the event occurred in Washington, where specific amounts of chemicals are equated to specific blood alcohol levels.  The USA Today article declares that Washington equates “5.0 nanograms of marijuana’s active ingredient . . . to a .08 [blood alcohol level].”

The tide against marijuana usage being a criminal offense is receding, for better or for worse.  As more and more states either legalize the drug or make it a non-criminal offense to possess and/or use it, those states which maintain a prohibition against marijuana will be left to wrangle with many questions concerning persons within their jurisdiction.  The questions will most likely revolve around the situation presented in this editorial: if a citizen utilizes a substance legal in one state, which is illegal in another, how should they be dealt with if the use of the substance interferes with local law or ordinance?  Should the person be held accountable for their legal, but then jurisdictionally illegal, subsequent conduct?  Should states be allowed to punish citizens for jurisdictionally legal activities which occur in other states, but then result in illegal activities within their jurisdiction?  These are all important questions.  And how about one more:  With such ambiguity, should federal lawmakers create an overriding law which solves the issue for all of the states which are currently wrangling with this issue?

Regardless of what the answers are to these questions, one component remains constant and unshakable: legislatures, prosecutors, and judges can’t ethically choose to actively ignore a wrong and hold their citizens accountable for it.  They shouldn’t allow their citizens to be abused by ambiguous laws and regulations.  And they shouldn’t allow their own personal religious or moral beliefs to color their professional judgments.  Until this happens, I have a feeling there will be more drivers who aren’t high, but are still being busted for a DUI.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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