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Nadhir Ishak

Other Traffic Offense Exonerations
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At 7 p.m. on August 5, 2013, police in Mesa, Arizona, pulled over a vehicle driven by 38-year-old Nadhir Ishak after the officer saw the car drift about several inches into the adjoining lane of traffic.

Ishak told the officer he had been talking to his passenger and when he realized he was drifting, he steered back into the proper lane. The officer later testified at Ishak’s trial that he smelled an odor of marijuana as he walked up to the car. In addition, he said, Ishak’s eyes were bloodshot and watery. The officer asked Ishak to perform field sobriety tests.

After Ishak experienced “body tremors and eye tremors,” the officer charged him with driving while “impaired to the slightest degree” and driving with marijuana or its metabolite in his system.

Prior to trial, Mesa city prosecutor’s office moved to prohibit Ishak from presenting evidence that he possessed a medical marijuana card. Ishak objected, arguing that the jury should not be led to believe it was illegal for him to ingest marijuana. The judge ruled the evidence that Ishak had such a card was irrelevant.

Ishak went to trial in Mesa Municipal Court in May 2015. The officer testified to the circumstances of the stop and his observations of Ishak. The prosecution also presented a laboratory analyst who testified that a sample of Ishak’s blood taken after the stop contained a concentration of 26.9 nanograms per milliliter of the marijuana metabolite THC. The trial judge sustained Ishak's objection to prevent the analyst from testifying whether that level “causes impairment.”

The defense called an expert who testified there was “no consensus” about what level of THC causes impairment. Ishak’s expert testified the reading of 26.9 was “a high number and it can impair some people, but I can't tell you that number ... will impair all people.”

On May 5, 2015, the jury acquitted Ishak of driving while impaired and convicted him of driving with marijuana metabolite in his system. He was sentenced to 90 days in jail.

Ishak appealed to the Maricopa County Superior Court, but the verdict was upheld.

He then appealed to the Court of Appeals of Arizona. While the appeal was pending, Ishak was arrested in July 2016 on charges of possession of marijuana. He pled guilty and was sentenced to probation.

In December 2016, the Court of Appeals of Arizona reversed the conviction and ordered a new trial. The court held that Ishak should have been allowed to introduce evidence that he was a valid holder of a medical marijuana card.

The appeals court held that “the municipal court in this case erred by precluding Ishak from offering evidence to support the premise of a cardholder’s affirmative defense...that because he was authorized to use medical marijuana, the mere presence of a marijuana metabolite in his bloodstream was not a violation.”

“Moreover, based on the record before us, had the court allowed Ishak to offer evidence of his…card, we cannot say that a properly instructed jury would have rejected his affirmative defense,” the appeals court said.

“Although the arresting officer testified Ishak displayed some symptoms of impairment during field sobriety tests, Ishak’s counsel vigorously cross-examined the officer, suggesting other explanations for the behaviors the officer observed. Ishak’s expert also testified that Ishak’s performance on the field sobriety tests did not prove he was under the influence.”

On June 28, 2018, the prosecution dismissed the charge.

– Maurice Possley

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Posting Date: 9/27/2018
State:Arizona
County:Maricopa
Most Serious Crime:Traffic Offense
Additional Convictions:
Reported Crime Date:2013
Convicted:2015
Exonerated:2018
Sentence:3 months
Race:Other
Sex:Male
Age at the date of crime:38
Contributing Factors:
Did DNA evidence contribute to the exoneration?:No