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State ex rel. Montgomery v. Harris

Supreme Court of Arizona

April 22, 2014

STATE OF ARIZONA, EX REL. WILLIAM G. MONTGOMERY, MARICOPA COUNTY ATTORNEY, Petitioner
v.
THE HONORABLE MYRA HARRIS, COMMISSIONER OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA, Respondent Commissioner; HRACH SHILGEVORKYAN, Real Party in Interest

Appeal from the Arcadia Biltmore Justice Court. The Honorable David Fletcher, Judge Pro Tempore. No. TR 2011-100433. Appeal from the Superior Court in Maricopa County. The Honorable Myra Harris, Commissioner. No. LC 2011-100433-001. Opinion of the Court of Appeals, Division One. 232 Ariz. 76, 301 P.3d 580 (2013).

Appeal from the Arcadia Biltmore Justice Court, AFFIRMED. Appeal from the Superior Court in Maricopa County, AFFIRMED. Opinion of the Court of Appeals, Division One, VACATED.

William G. Montgomery, Maricopa County Attorney, Andrea L. Kever, Deputy County Attorney, Susan L. Luder, Deputy County Attorney (argued), Phoenix, for State of Arizona.

Clark L. Derrick, Rhonda E. Neff, Kimerer & Derrick, P.C., Phoenix; and Michael Alarid, III (argued), Law Offices of David Michael Cantor, P.C., Phoenix, for Hrach Shilgevorkyan.

Stephen Paul Barnard, Law Offices of Stephen Paul Barnard P.C., Tucson; Joe St. Louis, Nesci & St. Louis, PLLC, Tucson; and Lawrence S. Koplow, Ridenour Hienton & Lewis, PLLC, Phoenix, for Amicus Curiae Arizona Attorneys for Criminal Justice.

Jon Eliason, Mesa City Prosecutor, Molly Lynch, Assistant City Prosecutor, Mesa, for Amicus Curiae Mesa City Prosecutor's Office.

JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF JUSTICE BERCH, VICE CHIEF JUSTICE BALES and JUSTICE PELANDER joined, and JUSTICE TIMMER dissented.

OPINION

BRUTINEL, JUSTICE.

[¶1] Arizona Revised Statutes § 28-1381(A)(3) makes it unlawful for a driver to be in actual physical control of a vehicle if there is " any drug defined in [A.R.S.] § 13-3401 or its metabolite in the person's body." We are asked to determine whether the phrase " its metabolite" includes Carboxy-Tetrahydrocannabinol (" Carboxy-THC" ), a non-impairing metabolite of Cannabis,[1] a proscribed drug listed in § 13-3401. We conclude that it does not.

I.

[¶2] Police stopped a vehicle driven by Hrach Shilgevorkyan for speeding and making unsafe lane changes. Suspecting that he was impaired, officers administered field sobriety tests. After participating in the tests, Shilgevorkyan admitted that he had smoked some " weed" the night before and voluntarily submitted to a blood test that revealed Carboxy-THC in his blood.

[¶3] The State charged Shilgevorkyan with two counts of driving under the influence. Count one alleged a violation of A.R.S. § 28-1381(A)(1) (" the (A)(1) charge" ), which prohibits a person from driving a vehicle in Arizona " [w]hile under the influence of . . . any drug . . . if the person is impaired to the slightest degree." Count two alleged a violation of A.R.S. § 28-1381(A)(3) (" the (A)(3) charge" ), which prohibits driving a vehicle " [w]hile there is any drug defined in § 13-3401 or its metabolite in the person's body."

[¶4] Shilgevorkyan moved to dismiss the (A)(3) charge, arguing that the blood test revealed neither the presence of THC nor " its metabolite" Hydroxy-Tetrahydrocannabinol (" Hydroxy-THC" ). At an evidentiary hearing, the State presented expert witness testimony that: (1) marijuana has " many, many metabolites," (2) Hydroxy-THC and Carboxy-THC are the two major marijuana metabolites, (3) although it is possible to test for Hydroxy-THC in the blood, the Arizona Department of Public Safety chooses not to do so because Hydroxy-THC does not " exist in the blood for very long" and is quickly converted to Carboxy-THC, (4) Carboxy-THC is inactive and does not cause impairment, and (5) Carboxy-THC can remain in a person's body for as many as twenty-eight to thirty days after the ingestion of marijuana.

[¶5] At the conclusion of the hearing, the justice court dismissed the (A)(3) charge, and the State voluntarily dismissed the (A)(1) charge. The State appealed to the superior court, which affirmed. That court reasoned that the word " metabolite" in § 28-1381(A)(3) is ambiguous because it is unclear whether it should be read as singular or plural. Although the court acknowledged that Carboxy-THC is a marijuana metabolite, it was unconvinced that the legislature intended ...


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