Possible Case Against Arresting Police Officer?

[justalayman]

Originally Posted by CdwJava

Merely having proof of THC in the blood (or alcohol, for that matter) does not prove DUI (unless the BAC is .08 or higher for alcohol). The DUI must be shown by impairment unless AZ makes it a crime to drive with any proof of THC in the blood (and I do not believe this is the case).



- Carl

did you miss my posting of the statutes Carl? I saw nothing that requires any specific level of content, merely presence.

[CdwJava]

Originally Posted by justalayman

did you miss my posting of the statutes Carl? I saw nothing that requires any specific level of content, merely presence.

I missed it on first glance, but after doing some reading it seems there is some challenge to the law when it comes to marijuana primarily because the effects of marijuana are often purged within an hour or so of smoking, while the metabolites can remain for a month or longer.

I would think it very difficult to make a case for impairment based upon smoking a joint a week ago.

But, if there is no case law modifying that statute, then it may well be that merely having the metabolite is sufficient for a conviction. I personally find that to be contrary to the intent of the law and offensive to the ideas of justice since one cannot possibly be impaired after such a time.

However! The arrest must STILL have been done based upon probable cause of impairment. There is no way for the officer to have determined that THC or its metabolites could have been present during a roadside sobriety test. hence my opinion that the arrest was based upon some observation of impairment. The arrest and the criminal charge would only be enhanced or made a "slam dunk", so to speak, by the presence of the metabolites. The arrest still requires probable cause apart from the presence of the THC (or its metabolites) in the blood.

- Carl

[azhelpneeded]

However! The arrest must STILL have been done based upon probable cause of impairment. There is no way for the officer to have determined that THC or its metabolites could have been present during a roadside sobriety test. hence my opinion that the arrest was based upon some observation of impairment. The arrest and the criminal charge would only be enhanced or made a "slam dunk", so to speak, by the presence of the metabolites. The arrest still requires probable cause apart from the presence of the THC (or its metabolites) in the blood.

He didn't have to determine that my husband THC in his system. My husband told him that he had smoked the night before. My main question, though it seems to have been lost in translation along the way, was does admission of smoking in general automatically make you guilty in a case like this? Because, from everything that I have been told, it does, which to me doesn't seem right or fair. Was the officer's assumption that he was high based on the fact that he stumbled during the FST's or based on the fact that he admitted to smoking the night before?

[CdwJava]

Originally Posted by azhelpneeded

He didn't have to determine that my husband THC in his system. My husband told him that he had smoked the night before. My main question, though it seems to have been lost in translation along the way, was does admission of smoking in general automatically make you guilty in a case like this?

No. And if the officer relied upon that admission to support an arrest for DUI, then I would have to say that there was possibly insufficient probable cause to support the arrest. However, if it is unlawful in AZ to operate with any amount of THC or metabolite within the bloodstream, then there may well be case law supporting an arrest under such an admission.

It should also be noted that most chemical tests for marijuana and other drugs do not test solely for the PRESENCE of a substance, but for its presence at a particular concentration sufficient to meet the legal requirements for impairment or drug influence. In other words there may be a concentration level that is too low to result in a positive test. Not being from AZ, I cannot say for certain what the standard might be there. Your husband's attorney should know this.

It still falls back to the establishment of lawful probable cause to make the arrest prior to the chemical test. If AZ law allows for such an admission absent any other indicators to support the P.C. for an arrest, so be it. I strongly suspect that is not the case and that the officer relied on a combination of that admission and his observations to justify the arrest.

- Carl

[azhelpneeded]

In other words there may be a concentration level that is too low to result in a positive test.

Well unfortunately from what everyone else on here is telling me, it doesnt matter in the slightest what the concentration level is. Simply having it in your system is enough to make you guilty.

And unfortunately, every lawyer we've spoken to said they would take the case but we'd have to pay part of the fee upfront and we dont have the money for it, seeing as he lost his job due to the arrest and he was the only one working at the time. So no lawyer, we're on our own on this one it seems.

[justalayman]

=CdwJava;2287563]I missed it on first glance, but after doing some reading it seems there is some challenge to the law when it comes to marijuana primarily because the effects of marijuana are often purged within an hour or so of smoking, while the metabolites can remain for a month or longer

.effects purged after an hour or so? When is the last time you smoked pot Carl? (a rhetorical question for effect. I would expect the answer to be ; never). The effects can last much longer than an hour. As I posted before, a big time smoker told me that it affects you well into the next day, without a doubt.

I would think it very difficult to make a case for impairment based upon smoking a joint a week ago.

Carl, when is your next vacation? OP said hubby was smoking the night before, not the week before.

But, if there is no case law modifying that statute, then it may well be that merely having the metabolite is sufficient for a conviction.

I personally find that to be contrary to the intent of the law and offensive to the ideas of justice since one cannot possibly be impaired after such a time.

Now I can find too many people that will argue that with you and not based on scientific study but actual experience..

note: Nevermind, after I wrote this, I realized you were thinking the use was a week prior rather than the night before.

However! The arrest must STILL have been done based upon probable cause of impairment.

I disagree but only because there is no level of impairment of level of chems in the blood required within the law. I contend the law is based on what it is merely because there is no legal use of MJ in Arizona and this law is an extreme stretch to control the use of MJ. It is like the states that tax MJ even though it is illegal. It merely gives the state one more way to catch and prosecute MJ users.

. The arrest still requires probable cause apart from the presence of the THC (or its metabolites) in the blood.

is not a confession enough for probable cause?

the only problem I see is; was the stop legal. Somebody posted another Arizona law that does require a stop if there is a sidewalk. We do not know if there was a sidewalk. If there is, obviously, hubby broke the law. If there was no sidewalk, I saw where a yield is all that is required so hubby may not have broken the law.

Guess its one they will have to find out in court.

[CdwJava]

Originally Posted by justalayman

.effects purged after an hour or so? When is the last time you smoked pot Carl? (a rhetorical question for effect. I would expect the answer to be ; never). The effects can last much longer than an hour. As I posted before, a big time smoker told me that it affects you well into the next day, without a doubt.

One of the effects of marijuana is that it impairs perception of time.

The "big time smoker" is either hallucinating or high. Perhaps he has smoked so much he is the exception to the rule and THC has managed to build up in the fatty tissues. One of the two THC metabolites is known as hydroxy THC can allow the smoker to feel some effect for up to 6 hours, so perhaps this is what he is feeling.

While the user can feel effects within 10 seconds of smoking, the peak effect is felt some time after that. While I was undershooting with the "one hour" comment, the peak is approximately 10-30 minutes after smoking. The effects can generally be felt for 2-3 hours, and the user will often feel "normal" after 3 to 6 hours.

Carl, when is your next vacation? OP said hubby was smoking the night before, not the week before.

Same difference. The effects should not have been visibly measurable by the officer if the OP's husband was telling the truth.

But, if there is no case law modifying that statute, then it may well be that merely having the metabolite is sufficient for a conviction. Now I can find too many people that will argue that with you and not based on scientific study but actual experience..

While the mere presence of the metabolite might be sufficient for a conviction, it was not probable cause for the arrest as there is no common field test for THC.

is not a confession enough for probable cause?

Typically? No. Absent some other element to show a crime has been committed a confession by itself should not be sufficient to establish probable cause. A confession combined with observed driving ... a confession combined with the odor of marijuana ... a confession combined with the presence of paraphernalia ... something. But, a confession by itself is not generally going to be sufficient. But, AZ law may address this differently than many other states.


Carl

[justalayman]

One of the effects of marijuana is that it impairs perception of time.

The "big time smoker" is either hallucinating or high. Perhaps he has smoked so much he is the exception to the rule and THC has managed to build up in the fatty tissues. One of the two THC metabolites is known as hydroxy THC can allow the smoker to feel some effect for up to 6 hours, so perhaps this is what he is feeling.

While the user can feel effects within 10 seconds of smoking, the peak effect is felt some time after that. While I was undershooting with the "one hour" comment, the peak is approximately 10-30 minutes after smoking. The effects can generally be felt for 2-3 hours, and the user will often feel "normal" after 3 to 6 hours.

Well Carl, this is one time we will have to agree to disagree. The person who told me this is a very dependable person and only said this in response to my "it's none of my business statement". He said if safety is involved, he would not work with a person that had gotten high the day before because it does affect you long enough to be of concern. I have great trust in his word in this statement.

additionally, from personal experience (twice in my entire life and both being many many years ago) your times are grossly understated. I was nowhere close to normal at 5 + hours. The effects were still quite evident and was still was not "normal" the following day.

In fact, I can tell you the peak was closer to that 5 hour time than it was 10-30 minutes after use. Dang, I don't think there was much of any effect within the first 10-30 minutes even but after that, way beyond anything I wanted to do again. Paranoia is not fun.

So, now you have, if nothing else, anecdotal evidence from a long term user and a two time user that your statistics are not totally correct.

[CdwJava]

Originally Posted by justalayman

Well Carl, this is one time we will have to agree to disagree. The person who told me this is a very dependable person and only said this in response to my "it's none of my business statement". He said if safety is involved, he would not work with a person that had gotten high the day before because it does affect you long enough to be of concern. I have great trust in his word in this statement.

Well, I prefer to trust the medical and legal experts who trained me. Drug evaluations are what I do.

Your acquaintance's impression may be his impression, but the clinical work is something else entirely.

You also have to understand that cannabis is psychoactive and perceptions and paranoia take hold. This might add to the perception that one is still high even when they are not clinically so. Expectations and perceptions can equate to reality even if the pharmacology and clinical evaluations are otherwise.

Again, the point is that no arrest can be absent probable cause. And, unless AZ has a lower than normal standard for probable cause in this regard, merely saying he smoked marijuana the previous day is not likely to establish probable cause to support an arrest. Maybe it does. If AZ holds such a bizarre absolute for drug influence DUI being based solely upon presence and not impairment, then maybe it is. As I am not familiar with this AZ law, I can't say. But, it seems unusual to me. And, quite frankly, unjust.

So, now you have, if nothing else, anecdotal evidence from a long term user and a two time user that your statistics are not totally correct.

It's not MY statistics. The research was not anecdotal, came from a variety of sources, and has been peer reviewed. Certainly there will be exceptions, and THC content (and even the possibility that substances have been laced) might play a part.

- Carl

[azhelpneeded]

Okay wow. I didn't intend on starting a debate on the effects of marijuana itself. Although I suppose since I started this thread and since the discussion has already begun I will have to input my knowledge of the topic.

Well Carl, this is one time we will have to agree to disagree. The person who told me this is a very dependable person and only said this in response to my "it's none of my business statement". He said if safety is involved, he would not work with a person that had gotten high the day before because it does affect you long enough to be of concern. I have great trust in his word in this statement.

additionally, from personal experience (twice in my entire life and both being many many years ago) your times are grossly understated. I was nowhere close to normal at 5 + hours. The effects were still quite evident and was still was not "normal" the following day.

In fact, I can tell you the peak was closer to that 5 hour time than it was 10-30 minutes after use. Dang, I don't think there was much of any effect within the first 10-30 minutes even but after that, way beyond anything I wanted to do again. Paranoia is not fun.

So, now you have, if nothing else, anecdotal evidence from a long term user and a two time user that your statistics are not totally correct.

Now please do not take anything I say as an attack on your friend who is a long-time user. Every person experiences things differently on any drug, whether legal or otherwise. Whereas your friend may very well have experienced such length in his experiences, and your two times may have been the way you stated, that is not true for all MJ smokers. As a smoker myself for the past 13 years (since I was 15), I have never once experienced a high or the effects of a high past 5 or 6 hours. The only way the experience has ever lasted that long for me was because I had been smoking off and on during the entire night so the effects last longer, but never once in 13 years have I ever had a high that lasted so long that I still felt high the following night, after sleeping and eating and going about normal day-to-day activities.

I also feel the need to express that everyone uses for a different reason. I mainly use for the purpose of a sleep aid. And before anyone goes off the deep end debating how there's no way a substance that raises your heart rate can be used as a sleep aid, well unless you have your own experiences you cannot pass knowledge. Even scientists will agree that it can make you drowsy. I have always experienced a deep and more seemingly satisfying sleep, even after only a few short hours, after "smoking a bowl" before bed. I have smoked since high school and before anyone passes judgement, I was an Honor Roll student all through high school, on many sport teams in high school and in college. I have held down full time jobs and have raised my 2 daughters on my own for the past 8 years. People can live completely normal lives and still smoke MJ. I am not addicted to it in any way. If I cant afford it, I cant smoke it and that's okay with me.

To Carl, I say thank you for your expertise. It feels good to know that at least one person agrees that the law in Arizona seems a bit unjust. Arizona laws are some of the toughest in the entire country, especially in Maricopa County. After reading through all of the comments and responses, I see that someone mentioned the driveway having a sidewalk, and that YES I can attend to so I see that okay, there was cause to pull him over. However I am still a bit lost on how pulling someone over for that kind of traffic violation, ends up being a huge case for DUI over something that was admitted to doing almost 24 hours earlier. I guess that will only be something that any lawyer we can hopefully find can explain to us. I do hope, however, that we are able to use some case studies and clinical findings about the effects and impairment of marijuana to aid in his case because I believe there are many findings that should be taken into account.

[CdwJava]

From what you wrote, it seems that the officer is able to articulate some measure of impairment based upon the FSTs. If so then the case becomes all that much harder. And if the law is truly zero tolerance even to metabolites, then it may all be over except for a plea deal.

He needs to speak with an expert in DUI defense.

As for the original question of whether there is a case against the police officer, I would tend to doubt that any such action is remotely possible. Unless the officer clearly violated the law by making a stop without reasonable suspicion, and made an arrest without probable cause, no cause of action against the officer will be likely. Certainly not easy.

- Carl

[lenny71]

This is just to reply to the 'distress' at losing his job.

You husband was driving a company truck and admitted to marijuana use (I understand he states he was not high at the time). Any sane company would fire him for insurance reasons alone, and since AZ is an 'at will' state, they don't need a reason. His distress was 100% self induced.

[azhelpneeded]

You husband was driving a company truck and admitted to marijuana use (I understand he states he was not high at the time). Any sane company would fire him for insurance reasons alone, and since AZ is an 'at will' state, they don't need a reason. His distress was 100% self induced.

Completely agreed actually, my husband and I have had the same conversation many times. However, that's actually where it becomes tricky.

See he was hired to do a job that required a vehicle. His boss knew before he was hired that he did not own one. Second, it is against company policy to use the company trucks for bank runs and such (which was what he was hired for) but the boss gave him permission to do such because he had no vehicle. And last, the boss knew he smoked marijuana before he was even hired.

So where yes, I completely agree that my husband is partly to blame for losing his job, the main blame falls to his boss for hiring him and allowing him to break policy fully knowing that he shouldn't have. So he called corporate himself and turned my husband in for what happened telling them that he DIDN'T know that he smoked and that he did NOT have permission to use the truck...all of which was completely false and done only to save his own job because if they had learned that his boss had not only given him permission but had hired him knowing he was a drug user then he would've lost his job as well.

So I suppose my blame was misplaced on that one, it should be his former boss that is to blame for losing his job, not the officer.

[ERAUPIKE]

Originally Posted by azhelpneeded

Completely agreed actually, my husband and I have had the same conversation many times. However, that's actually where it becomes tricky.

See he was hired to do a job that required a vehicle. His boss knew before he was hired that he did not own one. Second, it is against company policy to use the company trucks for bank runs and such (which was what he was hired for) but the boss gave him permission to do such because he had no vehicle. And last, the boss knew he smoked marijuana before he was even hired.

So where yes, I completely agree that my husband is partly to blame for losing his job, the main blame falls to his boss for hiring him and allowing him to break policy fully knowing that he shouldn't have. So he called corporate himself and turned my husband in for what happened telling them that he DIDN'T know that he smoked and that he did NOT have permission to use the truck...all of which was completely false and done only to save his own job because if they had learned that his boss had not only given him permission but had hired him knowing he was a drug user then he would've lost his job as well.

So I suppose my blame was misplaced on that one, it should be his former boss that is to blame for losing his job, not the officer.

Your husband should accept 100% of the blame and he will feel the repercussion of this mistake for many years. His former boss is required by law to inform any company that inquires as to the reason for his firing that it was drug related.

[lenny71]

Originally Posted by ERAUPIKE

His former boss is required by law to inform any company that inquires as to the reason for his firing that it was drug related.

Never heard that before. In fact, most places would be smart just to confirm that he no longer works there.