Getting Back Baby Jack – Putative Father Registration and Consent to Adoption in Arizona

A nightmare scenario for one Utah father has made national news.  The most disconcerting part of his story is that it could happen again right here in Arizona.

In 2010, Jake Strickland learned that he was to become a father.  Strickland and the baby’s mother, Whitney Pettersson Rathjen, mutually agreed to share joint responsibility for the care of their son despite their inability to maintain their intimate relationship together.  As the pregnancy progressed, Strickland became more and more involved.  He invited Rathjen to numerous family gatherings, paid for medical expenses and groceries, attended doctor appointments, and even converted a room in his home into a nursery to prepare for the arrival and care of his child.

During this time, Strickland and Rathjen briefly discussed the issue of whether Strickland should register as the baby’s putative father.  A putative father registry reserves potential paternity rights (including consent to adoption) for the unwed biological father of a child in the event that parentage is disputed after the baby is born.  The legal presumption is that the husband of a married woman is the biological father of her child unless the unwed biological father overcomes legal barriers to establishing paternity, one of which is putative father registration.

Sledding

Rathjen insisted that Strickland not register and take the mother at her word that she would not attempt to terminate his parental rights.  She even went so far as to threaten Strickland, saying that she would never allow him to see the baby if he submitted his name to the putative father registry.  Strickland, although leery of Rathjen’s odd response, felt he had no choice and never registered.

The day before the baby was born, Strickland and Rathjen spent the evening hours together walking through downtown Salt Lake City and enjoying the Christmas lights on display.  On December 29, 2010, Rathjen gave birth and, unbeknownst to Strickland, declared that she did not know the identity of the father and immediately consented to an adoption.

For eight days, Rathjen ignored or curtly responded to Strickland’s attempts to communicate with her.  At one point, Rathjen affirmed that she was still scheduled to have the baby by Caesarean section on January 12 before finally divulging the truth on January 5.  Since then, Strickland has been embroiled in an extensive and complex legal dispute with Rathjen, her attorneys, the adoptive parents, LDS Family Services, and the State of Utah over his wrongfully terminated parental rights.

Strickland alleges that Rathjen worked together with social workers and the adoptive family to streamline the adoption process and guarantee that he could not assert his paternal right to consent to the adoption until it was too late.  Strickland has been battling for the restoration of his parental rights for three years and filed a civil suit for fraud, racketeering, and other claims on January 2, 2014.  Essentially, Strickland believes that Utah law creates an adoption system that a birth mother can use to defraud an unwed father out of his parental rights with little to no recourse.

It is not yet clear whether the courts will vindicate Strickland’s claims, and the story is certain to continue to evolve as the civil case progresses (the adoption challenge, however, has reached the appellate stage and has established a clear record of factual wrongdoing even if the law does not create an eventual remedy).  That said, the case of “Baby Jack” in Utah could have happened much the same way in Arizona or one of numerous other states with similar unwed paternity law.

Arizona’s putative father registry statute allows an unwed father to register his claim of paternity and to receive notice of adoption proceedings.  The unwed father must affirm that he is willing and able to support the child and actively seeking paternity in a separate action.  The unwed father must register within thirty days of the child’s birth unless he proves by clear and convincing evidence that it was impossible at the time, but the father’s lack of knowledge of the pregnancy is specifically excluded as a reason for failure to file within the thirty-day period.  The statute, codified at A.R.S. § 8-106.01, declares that “the fact that the putative father had sexual intercourse with the mother is deemed to be notice to the putative father of the pregnancy.”  Furthermore, the adoption consent statute (A.R.S. § 8-106) requires the putative father to object to a proposed adoption by filing a paternity petition and serving it to the mother.

19th Century Family

This means that a father’s right to consent to, or reject, a potential adoption of his child can be defeated if the mother simply refuses to tell him about the pregnancy or the date of the child’s birth.  The Baby Jack scenario could easily be repeated in Arizona – and may already have occurred – because the statute does not waive its strict requirements in the event of fraud.  In fact, in 1971, then-Attorney General Gary K. Nelson issued an opinion recommending that the putative father registry statute be amended to require notice to all fathers whose identity is known when an adoption proceeding is initiated.  Op.Atty.Gen. No. 73-5-L.  Unfortunately, it appears that the Legislature ignored Mr. Nelson’s advice and still requires strict compliance with the onerous requirements of § 8-106.01.

As a result, one need not be a legal mystery writer to imagine the potential for a pregnant woman to accept the help of the baby’s father until shortly before childbirth and then dodge service of the paternity petition (assuming the putative father even receives notice of the adoption or manages to register in time).  The mere possibility of this result, let alone its apparent likelihood, is preposterous in today’s sophisticated world of family law.  Unfortunately, as long as states rely on antiquated notions of legitimacy and parental rights initially formulated almost a century or more in the past, the ability of well-meaning fathers to protect themselves will be handicapped.

Accordingly, the best way for an unwed father to protect his parental rights is to register before the baby is born notwithstanding his trust in the mother.  Admittedly, this advice is not helpful to an unwed father who does not learn of the pregnancy in time, either through mistake or misconduct by the mother, but early registration remains the best way to protect paternity rights.  That said, existing putative father law in Arizona and other states is not particularly effective at protecting the rights of fathers who want to be involved in their child’s upbringing.

 

Posted in Adoption, Brad TenBrook, Child Protective Services, Gregg R. Woodnick, Leslie A. Satterlee | Tagged , , , , , | Leave a comment

The Importance of Counseling in Domestic Disputes

All too often, tragedies occur in the context of divorce and custody disputes.  In Arizona we no longer use the term “custody” and instead use the phrase “legal decision making,” but for the purpose of this article we will refer to it colloquially as custody.  Unfortunately, many of those tragedies are perpetrated by the parties involved, but there may be ways to prevent the unspeakable from occurring.

On Christmas Day, a Casa Grande woman murdered her daughter, poisoned her family, and stabbed her ex-husband several times before attempting to kill herself.  Recent questioning revealed that the woman, Connie Villa, feared losing custody of her children to her ex-husband.  Few details are yet known about the couple’s 2012 divorce, made official a few months ago, and subsequent custody battle.

Eye Rub

Homicide is not commonplace in a family law dispute, but the threat of domestic violence, kidnapping, and other potential hazards and wrongdoing is great enough that courts often order counseling.  Furthermore, courts may order that the parties to a family law proceeding undergo a psychological evaluation, rehabilitation for substance abuse issues, and other forms of treatment to help create the safest environment possible.

Attorneys also have a pivotal role in resolving disputes in a way that promotes the long-term health of their clients and their families. Unfortunately, the professionals assigned to help guide a family through a case are limited by the good-faith participation of the parties.  For example, a husband who struggles with moderate depression may lie about his symptoms, fail to disclose his diagnosis, or refuse recommended treatment because he fears potential consequences with the court, his employer, or the rest of his family.  Conversely, the wife of a clinically depressed husband may exaggerate his behavior or fabricate an allegation of abuse in an attempt to compel a more favorable judicial result.

Meanwhile, the evaluators and caretakers are unable to make accurate recommendations to the court and cannot prescribe proper treatment of what ails the parties.  Ultimately, the failure of the parties to participate openly and honestly in the process can result in tragedies that might have been preventable.

It cannot be known whether the Christmas Day killing of Aniarael Macias, an innocent 13-year-old girl, could have been prevented, or even whether Villa suffered from an undisclosed or insufficiently treated illness, but the case provides a sad reminder of the high stakes that a family legal dispute can raise.

Welcome Back

If you are involved in a contested divorce, a custody dispute, a dependency hearing, or simply feel as though your family’s affairs are too strained to manage, the most important thing that you can do is to engage with the resources available to you.  Family court cases are immensely stressful to the parties, and even one or two counseling sessions can tremendously improve your quality of life during a difficult time.

Moreover, good-faith participation in the process, including complying with recommended evaluations and treatment, is critical.  Vexatious tactics and vengeance-oriented litigation might strain your family to the breaking point and trigger new disputes, violence, or worse.

The unseen forces that can damage a family – or an individual – beyond repair are particularly worrisome around the holidays, during school breaks and vacations, and just before or after moving to a new home or job.  Your attorney should be aware of these concerns and remind you that being overzealous in trying to protect yourself or your children might have the opposite effect of what you intended.

 

Posted in Brad TenBrook, Child Protective Services, Gregg R. Woodnick, Juvenile Court, Leslie A. Satterlee | Tagged , , | Leave a comment

When Arizona Foster Parents are Ready to Adopt – A Rare Opportunity for a Free Lawyer

I received a call the other day from a potential client and her partner.  They had been fostering a child through a CPS placement for almost 19 months.  The baby was just three weeks old when he was placed in their care.  The first few weeks of his life were spent in a hospital.  The birth mother had limited prenatal care and the baby was born as a S.E.N. (Substance Exposed Newborn).

Although foster training taught the moms that their obligation was to nurture the child until reunification with the parents occurred, as with many loving foster families, they fell in love with the baby after welcoming him into their Gilbert home.  Notwithstanding the drug exposure, he was thriving in their care.

Sunglasses Baby

The foster moms went to every Dependency Hearing and even attended the Foster Care Review Boards.  The biological mother appeared at the court hearings and proclaimed a desire to be reunited.  Her numerous missed TASC drug tests told a different story.  Her erratic behavior and failure to attend a court-ordered psychological evaluation coupled with an arrest for possession of drug paraphernalia certainly did not help her court appointed attorney present a defense or argument to expedite the reunification.

Meanwhile, the CPS case workers constantly changed.  There was an investigative worker, an involved supervisor, and three others since the baby had been in the State’s care.  Fortunately, no one ever mentioned removing the child from the foster parents.  There was never a biological father identified (referred to as a “John Doe”) and mother’s family was uninterested and/or equally enmeshed in methamphetamine culture.

Ultimately, the biological mother’s rights were terminated (she was pregnant again at the Severance hearing).  Now, six weeks after the severance hearing, the foster mom was meeting with an attorney for the first time to see what needed to happen.  Foster Mom, who is a physician in Chandler, was eager to pay my office to tie this up and complete this adoption so that they could get back to normalcy and so that she and her partner would not have to deal further with CPS, court hearings, Foster Care Review Boards (FCRB), etc.

As her check book came out on my conference room table, I had the rare pleasure of telling the moms that this would be free for them.  Pursuant to rules regarding ‘non-recurring adoption expenses’, the legal fees for the adoption can be paid by our Uncle Sam, irrespective of the financial situation of the parents.

Sports Kid

Our law provides that, in the case of CPS placement adoptions, non-recurring adoption expenses are reimbursed (paid) by the government.  What this means is that, once a Parent’s Authorization for DES to Reimburse Attorney Directly form is signed and other basic pleadings filed, the adoption can proceed through its conclusion without the adopting family incurring costs.

To be clear, this only applies to CPS placement adoptions in Arizona.  Qualifying placement adoptions require that the child is legally free for adoption and cannot or should not be returned home, the child experiences of one numerous broadly defined special needs, and the adoptive parent cannot adopt without a subsidy.    Most other situations, such as private severance actions, step-parent adoptions, and second-parent adoptions, still require direct payment to the attorney.

Still, the availability of government reimbursement for some adoptions contributes substantially to the placement of children with wonderful parents without the added burden of adoption expenses.  The joy felt by a newly recognized adoptive family is something for which every Arizonan should feel pride.

 

Posted in Adoption, Brad TenBrook, Child Protective Services, Gregg R. Woodnick, Leslie A. Satterlee | Tagged , , , , | Leave a comment

Supreme Court Hears Key Adoption Case for Arizona

The U.S. Supreme Court heard an important adoption case on April 16. The case, captioned Adoptive Couple v. Baby Girl, involves complex issues of sovereignty and statutory construction, to say nothing of the high stakes element of a little girl’s permanent placement.

In 2009, a South Carolina couple took custody of a newborn girl after her mother agreed to let them adopt her. The girl’s biological father objected to the adoption on the grounds that the mother had not consulted with him before making the arrangements.

Supreme Court (Woodnick)Under typical circumstances in South Carolina (and in many other states), the father’s consent would not have been necessary because he was not married to the mother and was considered an absentee. A 1978 federal law entitled the Indian Child Welfare Act, however, provided a strong enough legal ground for the state to award custody to the biological father in December, 2011.

The Indian Child Welfare Act (ICWA) was passed to address what was described as an “alarmingly high” rate of removal of children from Native American families. The law requires inclusion of the family’s tribe in proceedings to determine child custody, including adoptions. Under ICWA, the “biological parent or parents of an Indian child” cannot have their parental rights involuntarily terminated without notice, hearing, and proper showing that continued custody of the child by the parent or custodian “is likely to result in serious emotional or physical damage to the child.” Such notice must also be given to the child’s tribe so that the tribal courts can engage in determining the child’s placement.

If such a showing is made and the court terminates a parent’s rights, ICWA requires the court to give preference to the child’s extended family, other members of the child’s tribe, or to “other Indian families” when placing the child.

In the case at bar, the Supreme Court must decide if (and how) ICWA applies to the girl’s biological father, with whom she will have spent about 18 months by the time a decision is reached. No matter the result, one of two families will be devastated. Broader concerns with the case involve the potential limitation of ICWA, prompting several states, tribal councils, and others to file numerous amicus briefs.

Saguaro (Woodnick)The State of Arizona and the Inter Tribal Council of Arizona have each filed briefs in support of ICWA. Arizona is home to the nation’s third-largest population of Native Americans at around 155,000 people; if ICWA is overturned, the impact on Arizona would be disproportionately large. Legal commentators speculate that the Supreme Court’s high rate of reversal indicates the Justices’ intent to do away with outcomes like these under ICWA, but the form that such reversal might take is in doubt.

Adoptions are complicated endeavors which sometimes lead to tragic outcomes. ICWA is designed to respect tribal sovereignty and to protect the cultural heritage of Native American children whose unique situation makes them more vulnerable. At times, however, statutes have unintended consequences that can lead to termination of the rights of both biological and adoptive parents. Adopting a child in Arizona is a complicated process (and not only because of tribal law issues), so both Arizona adoption lawyers and prospective adoptive parents must exercise due care and caution.

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False Imprisonment Claim Yields $70,000 Settlement in New Mexico

ABC News reports that a New Mexico man agreed to a $70,000 settlement with the county whose officials arrested and wrongfully imprisoned him for several days in 2009. Anthony Ortiz was arrested because a clerk entered his Social Security number onto an arrest warrant for another man of the same name. The clerk found Mr. Ortiz’s SSN on an emergency 911 call log, but failed to determine whether the Anthony Ortiz listed in the log was the same person as the man whose name appeared on the arrest warrant.

Barbed Wire Fence (Woodnick)This unfortunate case illustrates a few key points about our legal system and steps that everyone should take to protect themselves in the event of a misunderstanding.

  1. Information used by police officers is sometimes inaccurate. In Arizona, efforts have been made to unify the databases that law enforcement agencies use to store and transmit information about people. The Arizona Department of Public Safety (DPS) collects and stores information about arrests, warrants, fingerprints (via the Automated Fingerprint Identification System – a subject we covered here), and other information. The Arizona Judicial Branch maintains a similar service for court cases throughout the state (you can find Arizona cases at azcourts.gov).Although the state has made progress toward ensuring that public officers have access to all of the information they need, the unfortunate reality is that these databases are incomplete. A judgment in the Glendale Municipal Court, for example, may not be reported to the Judicial Branch so that the Superior Court can easily find it. There may be no Maricopa County record of an arrest made in Coconino County, even if the person was fingerprinted. These holes in the records can present problems for police officers, judges, CPS workers, and others because important information may be left out of their decision-making processes.

    In rare cases, they may even lead to mistaken identities and false arrests like the one New Mexico. Conversely, incomplete records may lead police officers to believe that a person has no criminal record warranting arrest (like a past domestic violence conviction, for example) and respond inappropriately to an emergency call by their potential victim.

  2. Failure to carry a photo ID can have negative consequences. It is always in your best interest to carry a photo ID. If a police officers reasonably suspects that you have violated the law, he or she may detain you temporarily in order to ascertain your identity and to investigate the crime that they believe you may have committed (or are about to commit). Although Arizona’s “stop and identify” statute, A.R.S. § 13-2412, requires only that you state your full name, a photo ID can quickly and easily resolve the situation without unnecessary conflict with the officer. Other laws, such as the infamous SB 1070, may require officers to inquire further about your identity and legal status. Although not directly at issue in the New Mexico case, the importance of carrying an ID cannot be understated in the context of misidentification.
  3. Protect your Social Security number. Among the many mistakes that the New Mexico clerk made, matching a Social Security number to a name on an arrest warrant without any further verification was particularly egregious. Although this may sound like the prologue to a Mel Gibson film or an excerpt from Orwell’s 1984, each time that you give your Social Security number can lead to identity theft, mistaken identity, or some related problem.

Data (Woodnick)Use care to ensure that you always ask questions when anyone, including public officials, ask for your SSN. Ask why they need it, whether it will be stored (and how it will be protected), and whether there are any consequences for refusing to comply. For Anthony Ortiz, giving his SSN to an officer during a response to a 911 call probably seemed harmless, but improper handling of the information ultimately led to his wrongful imprisonment.

Another lesson to be learned (or re-learned if you follow this blog) from Mr. Ortiz’s unfortunate case is that you have legally protected rights which can be vindicated in the event of violation. Anthony Ortiz consulted with a lawyer and received a $70,000 settlement for the injury to his personal liberty and security.

Although it may seem as though no harm was done – after all, Mr. Ortiz was released after a few days – the impact of improper behavior by state officials should be understated. False imprisonment, malicious prosecution, prosecutorial misconduct, and other wrongs are unfortunately common. It is the duty of citizens and the province of attorneys to guard against abuse by standing up for individual rights.

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The Importance of Expert Witnesses

If the Jodi Arias trial illustrates anything to the legal community (note: it probably illustrates a lot of things), it is the importance of expert witness testimony in the contemporary trial setting.  Forensic psychologist Richard Samuels told jurors that Jodi Arias suffers from “dissociative amnesia” which caused her to misremember and forget details of the night on which she murdered Travis Alexander.  On cross-examination, Samuels and prosecutor Juan Martinez have engaged in a series of heated exchanges which may have irreparably damaged the expert’s credibility before the jury.

Many trial lawyers depend on expert witness testimony to bolster arguments, to educate judges and jurors about contested issues, to frame novel litigation strategies, and for many other purposes.  In some cases, such as medical malpractice, there may even be a statutory requirement that a qualified expert testify in order for your claim to succeed.  Unfortunately, not all expert witnesses are equal, and both the client and the attorney must exercise care when retaining an expert to testify at trial.

Door (Woodnick)Consider the following scenario and some of the challenges it presents:

Imagine that you are embroiled in a custody dispute and must prove to the court that your ex-spouse is no longer a fit parent.  Your ex suffered a head injury at work about a year before the case began.  You believe that the head injury is to blame for your ex becoming more prone to risky behaviors that endanger your children during visits.

Through the discovery process, you obtained a court order for your ex to undergo a physical examination, complete with brain scans, along with a mental examination performed by a psychologist.  Now, you have a pile of reports that you, your attorney, and a private consultant have carefully examined.

The neurologist’s report reveals a brain injury, but she was unwilling to conclude that the injury could lead to reduced inhibition and increased risk-taking.  Notably, the neurologist only read the scans and did not personally examine your ex. Alternatively, the neuropsychologist’s report includes observations which corroborate your allegation that your ex has grown more aggressive and takes some unnecessary risks, but the psychologist blamed the change in behavior on temporary occupational stress caused by your ex’s recent return to work and not on any physical injury.

Neither professional made any recommendation as to whether their findings necessitate a change in the custody arrangements because that issue goes beyond the scopes of their respective fields of expertise.  Furthermore, neither of these medical professionals has experience testifying as an expert witness.

You and your attorney believe that expert testimony is critical to your case, and you have three major options: (1) retain the neurologist, (2) retain the neuropsychologist, (3) engage another expert.

Choosing the right expert.

Although this is the most basic hurdle to leap when preparing to use an expert witness, it can be a tough decision.

Option 1, the neurologist, could speak to the nature and duration of the injury and its presumptive effects on behavior.  Choosing this expert would provide a strong medical platform from which to base the rest of your argument, but would require the judge to infer a great deal about the effects that the injury might have on your children because the neurologist’s knowledge only extends to the brain scans.  Also, because the neurologist lacks experience testifying in court, she may use indecipherable technical language or become flustered on the stand.

Spine (Woodnick)Option 2, the psychologist, can testify about the behaviors he observed, but likely will not link those behaviors to the brain injury.  This expert would help to solidify the link between your ex’s behavior and the danger to your children, but his testimony does not support a finding that the danger is a long-term (and possibly permanent) result of the head injury.  Again, the psychologist’s inexperience in court may nullify the persuasiveness of his testimony if he contradicts himself upon cross-examination.

Option 3, the wild card, could include any number of experts from other disciplines:  a behavioral health specialist, a childcare expert, a social worker, etc.  This expert would likely have experience testifying in front of a judge and could be hand-selected with a background that can link all of the evidence together to strengthen your case.  This expert did not personally examine your ex, however, which may reduce the directness (and persuasiveness) of his or her contentions in court.

Choosing whether to focus on the physical medicine, the psychology, or attempting to encompass all of the evidence within one expert’s breadth of knowledge is fraught with potential weaknesses.  Granted, there is always the possibility of retaining all three (or more) witnesses, but a parade of experts will probably annoy the judge and will almost certainly cost thousands of dollars with no guarantee of success.

What should I do? How important is an expert?

Like in the Jodi Arias trial, where Richard Samuels’s testimony is likely necessary to persuade the jury to understand the inconsistencies in the defendant’s recollections, expert witnesses can make or break any case.  The importance of an expert witness cannot be understated (with the caveat that a bad expert is just as likely to destroy your claim as a great expert is to strengthen it).

If you are faced with the need to choose an expert witness, the first step might be to consult with another expert.  With your permission, your attorney can discuss the facts of your case with an expert consultant who will read the files, examine the medical and vocational reports, and make recommendations.  Deciding whether to retain a neurologist, a neuropsychologist, a forensic psychologist, a neuroendocrinologist, a psychiatrist, or some other expert is much easier after a consultant explains the nuances of each field and the testimony that each expert can provide.  The nature and scope of your claim may or may not lend itself well to the use of expert testimony, so knowing whether a particular type of expert will be helpful is an important initial step.

Next, consider the experience, knowledge, and qualifications of possible experts.  An expert with an impressive academic resume may seem like a good choice, but a lack of field experience might lead to weakened testimony about the specific facts in your case.  On the other hand, an expert with a great deal of experience may have too narrow a view of emerging practices and research in his or her discipline.

A witness with courtroom experience is often a good choice, but consider the first few questions typically asked of an expert witness on cross-examination: “Have you ever testified as an expert witness before?  How many times?  Do you always testify for plaintiffs?  How much are you being paid for your services?”  A jury and a judge may reject the testimony of a career expert witness as too canned.

In a criminal case or child custody hearing with allegations of abuse, your outcome may rely heavily on the experts that testify.  These professionals are educating the judge or jury and may be the most persuasive evidence presented for your claim.  There is no “one-size-fits-all” psychologist, physician, or other medical expert for all situations.  Finding the right expert means the difference between success and failure.

Calculator (Woodnick)Parenthetically, we wrote this article while working on a case involving an allegation of child abuse.  A physician in Arizona opined that a red mark on the child was the result of non-accidental trauma. Before spending money on a pediatrician to refute the allegations, we consulted with a medical consultant, Marc Bernstein, M.D. of Medical Intelligence Consultants, LLC.  Dr. Bernstein, a specialist in expert medical testimony in Arizona, suggested that we consult with an allergist who specialized in pediatric immunotherapy.

The allergist provided the direct expert opinion we needed to demonstrate that the red mark was the result of an allergic reaction.  The right expert made all of the difference.

Posted in Brad TenBrook, Gregg R. Woodnick, Leslie A. Satterlee | Tagged , , , | 1 Comment

Arizona DUI Laws and Medical Marijuana

In Washington, marijuana is legal for both medical and recreational uses.  As a result of its voters legalizing the substance, the state is now undertaking the task of adopting new standards for regulating marijuana.  Washington decided to propose a standard more closely in line with that in force for other substances, such as alcohol.

Driving (Woodnick)One such regulation, Initiative 502, made national headlines in late 2012 because it sets an objective impairment standard: tetrahydrocannabinol (THC) content of greater than 5 nanograms per milliliter in a driver’s blood triggers Washington’s anti-DUI laws, with or without a medical use card.  I-502 has been the subject of controversy since its adoption because of the alleged dubiousness of the 5 nanogram threshold.  Although difficult, establishing a uniform objective standard for impairment should be a high priority for many states as drugs which significantly alter their user’s mental state become more widely accepted and legalized.

In contrast, Arizona, which approved medical marijuana in 2010, does not enforce a blood-content limitation in its DUI laws.  The Arizona standard, codified at A.R.S. § 28-1381, only specifically lists blood alcohol content as a factor in determining whether a driver was impaired by alcohol while driving.  Marijuana falls into the category of “any drug” and driving while impaired “to the slightest degree” is enough to violate the statute.  This is a more hardline approach and, although it appears to be objective, actually relies on law enforcement’s subjective analysis of the driver, at least at initial contact.

Police officers are trained to identify impairment using standardized tests, but the well-established .08 blood alcohol concentration (BAC) limitation for non-commercial driving is the most irrefutable (and usually error-free) form of evidence that the state uses to prove DUI violations.  A driver who is arrested and whose BAC is at or above .08 grams per 100 milliliters of blood is presumed guilty of driving under the influence as long as the blood test was performed in accordance with legal guidelines.  A driver could still be convicted of a DUI without a .08 BAC, however, with a strong enough showing of evidence of impairment.

Old Police Car (Woodnick)For medical marijuana users, no such presumption exists because Arizona has not adopted a fixed standard for acceptable concentrations of active THC in the blood.  Even if a standard were to be adopted, similar to the one in Washington, it remains unclear how much marijuana is enough to reach 5 nanograms per milliliter or how long the impairment will last, to say nothing of the wisdom of the 5-nanogram cutoff, itself.

As with anyone who imbibes a reasonable amount of alcohol and wishes to drive, medical marijuana users should be careful and plan ahead.  If you need to be somewhere soon after using medical marijuana, and even though you don’t feel you’re too impaired to drive, remember that in Arizona that determination is made by the arresting officer.  Even if you are capable of operating your vehicle safely, a minor traffic infraction – a faulty headlight or failing to signal a lane change, for example – could result in a DUI arrest.

Just as hard liquor contains more alcohol than beer, some strains of medical marijuana are more potent than others.  Even using the same marijuana on different days could result in different levels of impairment based on countless variables.  Your medical marijuana card will protect you from the per se violation of having metabolites in your bloodstream, but it will not protect you from DUI if you are pulled over and subsequently arrested.

Posted in Brad TenBrook, Drug Charges, Gregg R. Woodnick, Leslie A. Satterlee | Tagged , , | 1 Comment