Drugs and their metabolites are very important within the context of DUI cases here in Arizona. Their importance depends upon what is the particular DUI charge, what is the parent or the original drug and for metabolites, is the metabolite an active metabolite or an inactive metabolite.
Metabolites are chemical compounds that are slightly different than the parent drug. They are in effect created when the body is in the process of absorbing the drug, it changes the chemical compounds slightly. For example the original drug for marijuana is THC and as the THC interacts with the body it changes into an active metabolite of Carboxy THC. Metabolites can be active and still having a direct effect on the body or eventually they become inactive, no longer having a direct effect on the body. The distinction is important in the context of some DUI drug cases.
As a part of a DUI drug case, in almost all cases the police will have obtained a blood sample which was submitted to the crime lab for testing. For most agencies in Arizona the sample is submitted to the Department of Public Safety and for Phoenix cases it is submitted to the Phoenix Crime Lab.
The criminalist in the crime Iab will test the sample and their reporting out of the values depends upon what drug it is. For most drugs, for example with marijuana, what they will report out is that they found the presence of the main drug THC for marijuana, and the presence of the metabolites if there were any, active or inactive. They will also report out quantities of what they found and so for most drugs that is the way it’s done, what is present in terms of the parent drug and the active metabolite and the inactive metabolite.
An exception to that would be is if the drug is an illegal drug, then they will only report the presence of the drug and they will not break it down to whether it is the parent drug, an active metabolite or an inactive metabolite. This is true for such drugs as methamphetamine and cocaine. If those drugs are found they will only report the drug as being present. This has a significance on the DUI charges.
The main DUI charge is Driving While Impaired. What that means is that a person is driving or being an actual physical control of a motor vehicle while they are impaired by alcohol, drugs or some combination thereof. For this podcast I will only talk about drugs.
In order for the person to be guilty of DUI While Impaired, there has to be either the active metabolite or the parent drug having an effect on the person. If the only evidence is that there is an inactive metabolite then clearly the person is not guilty because an inactive metabolite by its basic definition is one that has no effect on the body so someone can’t be guilty of being impaired by something that has no effect on the body. So if it’s an inactive metabolite only and the charge is being Dui While Impaired, then that charge is not guilty.
If the charge is DUI While Impaired is one where it’s an illegal drug at issue that becomes a little more difficult. That is because what would happen is the lab report remember would only say that the drug is present and the prosecutors would then make arguments based on the fact it was present and the person’s for example, poor performance on field sobriety tests, that would be an indication that the drug was having an effect. So if it’s an illegal drug it’s more difficult to defend because it’s not broken down to drugs and active versus inactive metabolites.
For the second charge, which is Driving and Having a Controlled Substance in the Body, basic procedure is the state would have to produce testimony or a lab report saying that the drug or a metabolite was found in the body. Until last year that’s all the state had to do but because of a recent Arizona Supreme Court case with regard to marijuana, now the state must show that the drug present is either the parent drug or an active metabolite, because if it’s an inactive metabolite then the person is not guilty of Driving and Having a Controlled Substance in the Body.
This of course is a problem for illegal drugs like cocaine because those lab reports are not broken down by parent drug or active and inactive metabolite. These reports only state that the drug is present; and so there is no way to say from the states lab report to say only an inactive metabolite was present and therefore the person is not guilty.
Recently I had a case where I wanted to show that the person had methamphetamine in their body but it was only an inactive metabolite. The states lab report did not break it down so I couldn’t use that report. Quite often in these cases I use an expert criminalist who in the past has helped me get the samples tested for the presence of drugs. He attempted to find a lab in the country that would do a test on the sample to make a distinction between active and inactive metabolites of methamphetamine and he couldn’t find a lab and so we were unable to use that defense because we had nothing to counter the state’s tests showing that it was simply present.
Now in terms of prescription drugs on the Driving and Having a Controlled Substance in the Body charge there is an affirmative defense. That defense is that the person was taking a drug pursuant to a prescription and was following the prescription requirements. This applies to all prescription medications for which there is a lab report with the exception of marijuana.
For prescription drugs it is a little bit different because for those charges, what drug found is important. This is because by looking at the levels of both the active drug and the active and inactive metabolites, they can indicate that the person had taken that drug consistent with the prescription and not overdosed on it; then that’s a defense, and the person would be not guilty if that’s what the evidence showed to the jury’s satisfaction.
Now for marijuana it is slightly different because there is no prescription for marijuana. So for marijuana, what has to happen is if the person has a valid Arizona medical marijuana card and the levels of active parent drug and active metabolites are less than the level which would cause impairment, then the person is not guilty. So just like with prescription drugs, the levels of the active and inactive metabolites and parent drug are all important because then you can show evidence that the person was not impaired if that’s the case.
Now the state’s lab report should never be accepted at face value and can always be reviewed to see how accurate they are, and again depending on the substance if it is a legal drug prescription drug then it can be retested to see how accurate the state’s test results are.
So that is today’s podcast involving the topic of drugs and drug metabolites in DUIs. As you can see it depends on what is the drug, what is the charge and is the metabolite an active or inactive metabolite.
If you have any questions about this podcast please call me.