Introduction to Marijuana and DUI in Arizona

introduction to marijuana and dui in arizonaSince 2010, Arizona residents with qualifying medical conditions have had access to medicinal marijuana, available for purchase in storefront dispensaries throughout the Valley.  Marijuana has been proven to assuage the pain and nausea of several chronic illnesses, and is invaluable in providing relief from the chemotherapy regiment of cancer patients.  However, along with the medical benefits of marijuana, there are psychoactive compounds called cannabinoids, which lead to the user feeling “high.”  The level of impairment associated with this high feeling is still being debated, but Arizona legislators have already taken steps to firm up DUI laws in regard to marijuana consumption.  This article will explain the current Arizona laws for Marijuana DUI, as well as possible penalties and defenses if you are charged with a DUI.

New Developments in Marijuana DUI Law

In late 2015, the Arizona Supreme Court ruled that there is no blanket immunity for Arizona medical marijuana cardholders, meaning that if a cop pulls you over and can identify that you are high on marijuana, they can charge you with a DUI even if you have a medical card.  Although this seems like bad news for Medical Marijuana patients, it is actually an upgrade from the previous law passed down by a lower Arizona court, which made it possible to prosecute a medical patient for even the slightest amount of marijuana in their system.

medical marijuana card and marijuana and dui in arizonaHowever, the most important aspect of this legislation is in recognizing the legitimacy of the medical marijuana card.  Before, if someone was charged with a marijuana DUI, it did not matter whether they obtained the marijuana legally or illegally; in fact, a medical marijuana patient could not even declare themselves as such in court.  With this new law, the court will finally recognize the medical marijuana card in the defense process.  In practical terms, this new Medical Marijuana DUI law is no-nonsense, informed legislation which puts the impetus of responsibility in the driver’s hands.  Arizona Chief Justice Scott Bales wrote on the matter: “The risk of uncertainty in this regard should fall on the patients, who generally know or should know if they are impaired and can control when they drive, rather than on the members of the public whom they encounter on our streets.”

Chief Justice Bale’s analysis is rooted in the scientific ambiguity surrounding marijuana intoxication.  While one’s level of alcohol intoxication is easily determined through breathalyzers, there has been no system developed to determine one’s level of marijuana intoxication at a traffic stop.  Even if the accused is charged and tested using more advanced machinery at the police station, it is incredibly difficult to determine how the concentration of marijuana metabolites in the system translates to actual inebriation, since marijuana metabolites remain in one’s system for up to a month.  Moreover, the amount of marijuana the patient regularly consumes will significantly affect their tolerance, meaning that even if concentration of compounds in one’s system could be reliably time-stamped, person to person inebriation will be wildly flux.  And, even if there was some way to accurately calculate “highness,” there is no scientific evidence to show that driving high on marijuana is even all-inclusively negative.  Granted, new users will be impaired, but some studies have shown that experienced smokers with high tolerances actually drive more cautiously while under the influence of marijuana.  See the article from NORML on Arizona drugged driving.

Most importantly, this new DUI law finally eliminates the possibility of automatic convictions based on the mere presence of marijuana.  Instead, it allows the defendant the ability to explain their situation in logical terms, absent of the drug-war preconceptions that have been perpetuated in courts for decades.  Experienced DUI defense lawyers will have the opportunity to use a breadth of evidence never afforded to them before.  For instance, let us say the defendant was pulled over and arrested for being high on marijuana, and then brought back to the station and tested at a very high level of THC (the psychoactive compound of marijuana).  In addition to the noted ambiguity of the testing method itself, the defendant will now under this law have the opportunity to prove that even though the test showed high THC content, that they were not in fact impaired by that THC.  The defendant could pull buying records from the Arizona Department of Health Services, providing evidence of their heavy use, and thus, high tolerance.  The defendant could provide evidence of their qualifying condition, and why relief from it requires that amount of marijuana.  Simply put, it allows defendants the ability to break free from the uninformed stringency of past marijuana legislation.

Under this law (28-1381), the prosecutor still must prove that the driver was impaired with, just as before, beyond a reasonable doubt evidence.  Beyond a reasonable doubt is the highest burden of evidence required by the courts, but all the State must prove is that the defendant was in “actual physical control of a vehicle and had marijuana or its impairing metabolite in their body.”  Although the burden of proof is high, providing evidence of the mere presence of the marijuana metabolite is not a difficult task.  Once the prosecution has provided this evidence, the burden then shifts to the defense to prove by a preponderance of evidence that “the marijuana or the metabolite found in their body a the time of driving was in a concentration insufficient to cause impairment.”  Preponderance simply means more than half, so it is a significantly smaller burden than the beyond a reasonable doubt burden required by the State.

Effect of the New Court Decision Regarding Marijuana and DUI in Arizona

However, this does not mean that Arizona courts will clear any and all medical marijuana DUIs.  Chief Justice Bales made it very clear that a medical marijuana card is not a blanket immunity, get out of jail free card.  Although the proof required is only a preponderance of evidence, that evidence is difficult to obtain.  For instance, although it can be used as evidence, there is no way to accurately determine tolerance-something which has a huge effect on impairment.

effect of new decision on marijuana and dui in arizonaAnd this, in the end, is the real problem with modern marijuana legislation.  Because it is so difficult to determine actual impairment with modern day technology, any evidence submitted from either party must be taken with a grain of salt.  Of course, some evidence is still stronger than other evidence; for instance, if there were witnesses willing to testify that they saw the driver weaving, this could prove impairment more than invoking evidence of metabolite concentration.  However, with little “smoking gun” type clear evidence able to be submitted, it seems that a large portion of future marijuana DUIs will be based on either the talent of the defense attorney, the worldview of the judge, or a combination of the two.

Although most Arizona lawmakers agree with the Supreme Court’s decision to recognize medical marijuana patients, there are some who are justifiably wary.  Opponents of the new law argue that although the courts claim no blanket immunity for medical patients, the lack of hard evidence discussed above will essentially conflate presence of marijuana and impairment, making it impossible to rule on the latter.  Ironically, when viewing the law from this perspective, it is basically a reversal of the prior law, moving from mere presence=impairment=conviction to impairment= mere presence= acquittal.

Yet, due to the ambiguity of the evidence in marijuana DUI cases, along with the utter dearth of statistical and scientific evidence on the danger of driving under the influence of marijuana, should we not give medical patients the benefit of the doubt?  The true gauge of a law’s efficacy is in its practical effects on society.  It is extremely doubtful that this law will lead to any meaningful increase in accidents, in DUIs, or even in people driving under the influence of marijuana.  It will, however, allow medical marijuana cardholders to at least declare in court that they are not “druggies,” but patients, and that their decision to choose comfort will not result in a prison sentence.   Contact us to speak directly with an experienced Tucson DUI lawyer.

If the prosecution does prove you were impaired and you are unable to provide evidence to counter,  you will be charged.  The prosecution only needs to provide evidence that you were slightly impaired, which can be done based on driving errors, appearance, and especially field sobriety tests.  This is why you must decline field sobriety tests if the officer asks.  Often, these field sobriety tests are unfairly difficult, exaggerating the impairment of the driver.  Also, because concentration of marijuana in one’s system is considered unreliable in the eyes of most judges, field sobriety tests may be the only swaying piece of evidence that your defense attorney cannot explain away.

Penalties for Marijuana and DUI in Arizona

penalties for marijuana and dui in arizonaIf you are charged, a first time penalty will be a misdemeanor with a sentencing range of one day to six month, a potential 1500 dollar fine, and attendance of a mandatory substance abuse program.  A second time charge will still be a misdemeanor, but will include a mandatory thirty days in jail, 3500 dollars in fines, and an eighteen month revocation of your license.  A third DUI charge will result in a felony, with significantly longer prison time and steeper fines.

With marijuana still recreationally illegal in Arizona, those who are caught driving under the influence of marijuana without a medical marijuana card will still be charged as before.  And, just as before, if the State provides beyond a reasonable doubt evidence of impairment or even mere presence of marijuana metabolites while driving, non-medical patients can and most likely will be convicted.  Although people should not be able to do illegal things without consequence, the very fact that lawmakers are beginning to understand the ambiguities of metabolite testing is a good sign for both medical and non-medical defendants.  While it is more difficult without a medical card, an experienced DUI defense attorney could use this ambiguity to argue lack of impairment and significantly reduce your sentence.

Marijuana is a drug, and it certainly has impairing effects for drivers.  Yet, can we even compare these impairing effects to alcohol, a substance responsible for 10,000 drunk driving deaths a year?  After many years, Arizona has finally implemented some logical marijuana legislation, where a medical patient can invoke their medical status in court. Yet, there are still many developments to be made.  When technology catches up with legislation, and we have a way to accurately determine marijuana impairment, laws will be more concrete and less reliant on speculation.  Until then, though, both opponents and proponents of marijuana should be content with the tenuous middle ground reached by the Arizona Supreme Court.

Interested in learning more about marijuana DUI in the state of Arizona?  We’d love to hear from you!  Comment below or reach out to us on our social media channels.  If you need criminal defense assistance for a marijuana DUI in the state of Arizona, contact an experienced DUI attorney today.