Nevada High Court Rejects Pot User’s Driving Bid
|Nevada “High” Court
RGJ.com By Martha Bellisle – A California woman who legally smoked marijuana in her home state and then drove across the Nevada state line with an “inactive” marijuana metabolite in her system still is guilty under the state’s impaired driving law, the Nevada Supreme Court ruled.
Shira Garfinkel was convicted in Incline Justice Court of being over the legal limit of marijuana metabolite, which is the “inactive” substance the body produces to get ride of marijuana’s active ingredient tetrahydrocannabinol, or THC.
Her lawyer, Deputy Public Defender Priscilla Nielson appealed, arguing that since the metabolite is an “inactive” substance, it “does not affect the person’s ability to drive,” and the law is unconstitutional.
Justices Nancy Saitta, Michael Cherry and Mark Gibbons disagreed.
In an unpublished decision, which means the ruling only applies to this case and does not set legal precedence, the justices said they already ruled in another case that the law appropriately applies to both marijuana’s active ingredient and the metabolite, and they don’t need to “revisit that decision.”
They also dismissed Garfinkel’s claims that the law “interferes with her right to travel” because she is a legal user of marijuana in California and Nevada’s DUI law would keep her from crossing the state line.
The law does not prohibit her from traveling, the justices said, “it criminalizes her driving a motor vehicle through the state with prohibited substances in her blood and urine.”
Nielson said she was “somewhat discouraged” with the ruling and that she has not yet decided if she’ll ask the full court to review the case.
“I’m disappointed that they did not apply a legal analysis, they just looked at the bottom line of the Williams case,” Nielson said.
Jessica Williams was convicted in 2002 of running over and killing six teenagers after smoking marijuana.
She appealed, and the high court affirmed her conviction, saying the law served two legitimate state interests: promoting highway safety and deterring the illicit use of drugs, Nielson said.
Nielson said that neither of those points apply in this case. The metabolite does not impact driving ability because it’s inactive, and the drug use in this case was legal, she said.
According to William Anderson, chief toxicologist at the Washoe County crime lab, regular users of marijuana would have an almost continual level of metabolite in their systems.
Garfinkel was stopped for speeding on Tahoe Boulevard early in 2010 and charged with driving with a prohibited amount of a prohibited substance. She has a doctor-approved cannabis card that allows her to use the drug, under California law.
At her trial in Incline Village Justice Court, Judge Alan Tiras said she was not guilty of having THC in her system. Her test showed she had two nanograms of the THC, the legal limit.
But since the test is plus-or-minus 1 nanogram, he did not convict her. But he found her guilty of having the metabolite in her system. The test measured 20 nanograms of metabolite, and the legal limit is 5 nanograms.
She appealed to Washoe District Court, and Judge Robert Perry affirmed Tiras’ ruling.
The next appeal took her argument to the Supreme Court, but the justices affirmed the conviction.
“Garfinkel’s attempts to distinguish her case from Williams by arguing that in Williams this court grappled only with the prohibition on active marijuana and did not meaningfully analyze the constitutional implications of the prohibition of driving while carrying marijuana metabolite in the blood are unavailing,” the ruling said.
In the Williams decision, the justices said, they “rejected the arguments of those who claimed that the law ‘lacked a direct correlation between the prohibited drugs in a driver’s system and impairment.'”
In this case clearly the justices did not even look at the law, nor he facts of the case. The intent of the law is to stop someone who is impaired from driving a very heavy, speeding vehicle that will do serious harm to someone else. In this case, there was no evidence of any potential harm coming to anyone since the substance in question was not the marijuana, but the bodies production of a substance which cleans out marijuana. It is like saying having bleach or bathroom cleaner is evidence there was illegal substances in your bathroom and therefore you’re criminally liable.
Now, I don’t mean to cast aspersions on a fine Nevada DUI Attorney, but how do you lose a case on these facts? Yes, the DUI attorney was looking for the court to declare the law unconstitutional, but it seems nearly a slam dunk. That last sentence makes assumption of the reader. I apologize and will correct that assumption now. The DUI attorney was looking for the Nevada Supreme Court to declare the law unconstitutional. It is my personal opinion that all courts and police are completely corrupt and run amuck of the constitution ad nauseum. There is almost no way that any court in the land would declare any law unconstitutional these days, UNLESS, it was so blatantly obvious that even the ignorant, unwashed masses could plainly see it was unconstitutional. It is the same reasoning we have a 2 billion dollar HIV industry. They haven’t located actual HIV, but they can see antibodies to HIV. This is the same reasoning. There was no THC, the substance in marijuana that makes you high, but they found metabolite in her system, nor was she potentially dangerous while driving.
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