Marijuana DUI in Arizona

Arizona DUI laws prohibit driving with any illegal drug in your system. Marijuana is unique, however, because of its evolving legal status. Since 2010, under the Arizona Medical Marijuana Act (AMMA), qualified patients, who are registered with the Arizona Department of Health Services with current registry identification cards, may use and possess marijuana. But just like for alcohol and prescription drugs, Arizona has zero tolerance for driving while impaired by marijuana. Additionally, irrespective of impairment, drivers cannot have active marijuana in their body while driving. The only exception is an affirmative defense, under the AMMA, as ruled in Dobson v. McClennen (P.3d, 2015 WL 7353847, Arizona Supreme Court 2015). The Court of Appeals reaffirmed this defense in Ishak v. McClennen (Arizona Court of Appeals 2016).

This is problematic because we increasingly rely on our medical professionals to diagnose and treat a variety of conditions. Mainstream medical surveys show that 7 out of 10 Americans take daily prescriptions; furthermore, 2 out of 10 Americans are taking more than 4 medical prescriptions. And many pharmaceutical drugs don’t actually diminish or impair driving; they often improve driving. Everyone’s body-chemistry and medical needs are different. Prescription drugs have a wide range of therapeutic and toxic effects depending on the person’s use, chemistry, and interaction with other substances.

There Are Two Misdemeanor Marijuana DUI Charges in Arizona:

The citation or complaint usually contains both an impaired driving charge and a per se drugged driving charge:

Impairment to the Slightest Degree under A.R.S. 1381(A)(1): This law makes it illegal to drive while impaired by any drug or alcohol—including marijuana. This is Arizona’s zero tolerance DUI. It strictly prohibits driving while impaired by any alcohol or drugs, regardless of medical prescription.
Driving with an Illegal Drug in the Body under A.R.S. 1381(A)(3): This law makes it illegal to drive with active-marijuana in the body. A.R.S. §28-1381(A)(3) is a “strict liability” crime; it doesn’t matter whether or not the marijuana impaired the driver. The prosecutor only needs to prove that active-marijuana was in the body when driving.

Medical Marijuana Defense in DUI Cases.

The Arizona Medical Marijuana Act (AMMA) is operated by the Arizona Department of Health Services and allows qualifying patients to use and possess marijuana. A qualifying patient is a person diagnosed and certified by a doctor as having a qualifying medical condition and issued an Arizona Medical Marijuana Registry ID Card.

In Arizona, a medical marijuana card is only an affirmative defense to one of the marijuana DUI charges. To the zero tolerance charge, under A.R.S. § 28 1381(A)(1), having a marijuana card is not a defense; however, you can still argue that you weren’t impaired. Arizona DUI law has zero tolerance for driving while impaired by marijuana; it doesn’t matter if the driver had a card. The medical marijuana card does provide an AFFIRMATIVE DEFENSE to the drugged driving charge under 1381(A)(3).

Under the medical marijuana DUI defense, you may have active, therapeutic levels of marijuana in your system, so long as it’s not impairing you while driving. Unfortunately, this burden is on the Defendant. As such, the Defendant either needs to testify on his use of marijuana, or use an expert witness to discuss the theoretical effects of the alleged marijuana in the defendant’s body.

What type of marijuana must be in the body to justify prosecution?

Arizona’s DUI laws outlaw driving with THC in the body; THC is the psychoactive constituent of marijuana. A driver can also be prosecuted for any impairing marijuana metabolite found in the driver’s blood or urine sample.

So what is an impairing marijuana metabolite? When people hear the term metabolism, they think about how quickly someone processes calories from food and drinks. While this is true, metabolism more generally refers to how we break down and process things we put in our body, including marijuana. The body processes marijuana through many steps. When we process its active ingredient—THC—it’s converted into new chemicals known as marijuana metabolites. These metabolites can remain active and continue to impact the brain and body. Certain marijuana metabolites can cause impairment while being processed.

Marijuana’s active ingredient is THC; as such, you cannot have that in your system while driving. When your body processes or metabolizes THC, it turns into 11-Hydroxy-THC. It’s illegal to drive with Hydroxy-THC in your body because it can cause impairment. The body then further processes (or metabolizes) Hydroxyl-THC into 11-nor-9-Carboxy-THC. Carboxy-THC is NOT an impairing metabolite; and as such, a driver with only Carboxy-THC should not be prosecuted. Prosecutors will decline or dismiss a marijuana DUI if only Carboxy-THC is present. In 2014, the Arizona Supreme Court barred the prosecution of marijuana DUI when only Carboxy THC is present.

How do Police Identify and Test Suspected Drugged Drivers?

Unlike an alcohol test, which measures BAC levels and correlated levels of impairment, a reported marijuana level cannot conclusively tell us whether a driver was impaired. The test only estimates how much marijuana was in the driver’s system based on a sample of blood or urine. Thus, we’re often left with an officer’s biased, untrained, and subjective testimony; the Officer reports that he thinks the driver was impaired based on his non-medical observations.

To combat this shortcoming, law enforcement invented its own way to test for drug impairment. They created drug recognition programs, in which they appoint officers as drug recognition experts (DRE’s). These self-proclaimed experts take a brief law enforcement class and test that certifies them to recognize drug use and impairment. DRE’s are called out to marijuana DUI investigations to examine drivers suspected of marijuana use. There’s no outside scientific studies or entities to support law enforcement’s DRE programs; the DRE’s are only supported by their own biased studies, tests, and programs.

A major problem with DRE officers—in marijuana cases especially—is that they almost never admit a mistake when tests confirm there’s no active marijuana in the Defendant’s blood. Once they suspect past marijuana use, they’ll almost always testify that the driver smoked it recently and was impaired. For example, if a driver tells an officer that she has a medical marijuana card and smoked a day earlier, the officer will go on a fishing expedition to find marijuana and look for signs of recent use. This is classic confirmation bias, self-fulfilling prophesy, and avoidance of cognitive dissonance. Officers seldom admit error or wrong doing—especially when it comes to their own investigations.

Penalties for Marijuana DUI Charges.

While a Defendant can theoretically be charged and convicted of both marijuana DUI charges, only one sentence can be imposed by the Judge.

Maximum Penalties for Marijuana DUI: A.R.S. 28-1381(A)(1) & 28-1381(A)(3)

Jail: 180 days
Fines: Approximately $4,600.00 in fines
Driver’s License: 90 day license suspension (no driving first 30 days / restricted driving last 60 days).
Probation: 5 years
Interlock Device: 6 to 12 months, but only if specifically ordered by the Judge
Counseling: Alcohol/Drug Screening and Classes
Community Service
MVD Points: 8 points and Traffic Survival School.
Insurance: Obtain SR-22 Insurance Policy for up to 3 years

Mandatory Minimum Penalties for Prescription Drugs DUI under ARS 28-1381(A)(1) and 28-1381(A)(3):

Jail: 10 days, but as little one day jail, if your DUI attorney successfully plea bargains for a suspended jail sentence with proof to the Court that you successfully completed an alcohol/drug assessment and classes.
Fines: Approximately $1,500.00 to 1,700.00 depending on which court you are in front of.
Driver’s License: 90 day driver’s license suspension (no driving first 30 days / restricted driving last 60 days).
Interlock Device: As of January 1, 2017, there’s no ignition interlock requirement; however, the Judge has discretion to add this requirement. If the Judge elects to order an ignition interlock device, it can be for as little as 6 months. You must comply with all interlock device requirements, including compliance with routine device maintenance and never blowing a positive alcohol reading into the interlock device.
MVD Points: 8 points and Traffic Survival School.
Insurance: Obtain SR-22 Insurance Policy for up to 3 years (Can Sometimes be Avoided)

Mandatory Minimum Penalties for Prescription DUI under A.R.S. 28-1381(A)(1) and 28-1381(A)(3) IF previously convicted of any DUI offense in the past 7 years (84 months):

Jail: 90 days, Add all but 30 consecutive days may be suspended if you show proof of completion of alcohol screening and counseling.
Money: Approximately $5,000 in fines, fees, and jail related costs.
Counselling: Alcohol / Drug Screening and Classes.
Driver’s License: Driver’s license is revoked for one year; however, after the first 45 days of the revocation period, you can apply for a restricted license, which allows you to travel to and from work, school, medical, and court related appointments so long as an ignition interlock device is installed on your vehicle.
Interlock Device: At discretion of the court
MVD Points: 8 points to MVD Record and Traffic Survival School.
Community Service: 30 hours community service.
Insurance: Obtain SR-22 Insurance Policy for up to 3 years