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Medical Marijuana Card No Defense to DUI 28-1381(A)(3) Charge

Even though Arizona voters recently passed a medical marijuana law, Arizona prosecutors are not giving the new law much respect. As I have written about before, Arizona has an illegal metabolite statute, 28-1381(A)(3) that makes it illegal to drive a motor vehicle with an illegal drug or metabolite in the driver's system.

That means even if someone is driving perfectly fine without any sign or symptoms of impairment, that driver will be guilty of a DUI just because he or she has an illegal drug in their system, even if it is only the metabolite and not the active ingredient (see "Arizona court ruling upholds DUI test for marijuana".

An appeals court has issued a ruling that upholds the right of authorities to prosecute pot smokers in Arizona for driving under the influence even when there is no evidence that they are actually high.

The ruling by the Court of Appeals focuses on the chemical compounds in marijuana that show up in blood and urine tests after people smoke pot. One chemical compound causes drivers to be impaired; another is a chemical that stays in people's systems for weeks after they've smoked marijuana but doesn't affect impairment.

The court ruled that both compounds apply to Arizona law, meaning a driver doesn't have to actually be impaired to get prosecuted for DUI. As long as there is evidence of marijuana in their system, they can get a DUI, the court said.

The ruling overturns a decision by a lower court judge who said it didn't make sense to prosecute a person with no evidence they're under the influence.

But what is even worse than that is that if someone has a medical marijuana card that is not a defense to the metabolite charge. That is because while having a valid prescription is a defense to the metabolite charge, the medical marijuana card is a "certification", not a prescription, and thus no defense. That means an Arizona driver can consume marijuana legally pursuant to the medical marijuana statute, drive perfectly fine, and still convicted of a DUI even though they did not have any active ingredient in their system.

Also, the Arizona Department of Motor Vehicles (MVD) started conducting administrative hearings to possibly suspend the driver's licenses of drivers cited with a drug DUI. The important point here is that a driver can lose their license even if they are not convicted at court. I recently asked a MVD judge if MVD considers a medical marijuana card sufficient to keep a driver cited with a marijuana DUI from losing their license, and she told me MVD has not yet decided on the issue.

If you have been charged with a DUI, call me right away for a consultation at 602-955-1985.

Arizona's Medical Marijuana Law

Two years ago, by way of voter referendum, Arizona voters passed a medical marijuana law similar to California and other states that allowed certain individuals with medical conditions to use grow and use marijuana. But just like those other states, while the state may have legalized marijuana grow and use, it is still a violation of federal law.

One would assume, however, that it is up to the federal government whether or not to enforce federal law. That is exactly what the United States Supreme Court decided when they said Arizona could not impose state penalties for violation of federal immigration law under SB 1070 (see "Supreme Court upholds Arizona SB 1070 in part, but does it matter?").

Having stated that though, it does not seem like 12 out 15 Arizona county attorneys agree with that legal principle (see "Medical-marijuana growers await outcome of Arizona lottery for dispensaries" by Yvonne Wingett Sanchez):

Yavapai County Attorney Sheila Polk, who has urged Brewer to halt licensing of dispensaries because marijuana is illegal under federal law... Polk and 12 of the state's 15 county attorneys are fighting the marijuana law and sought a legal opinion from Attorney General Tom Horne as to whether the state law is pre-empted by federal law.
Horne on Monday issued an opinion that the law's provisions "authorizing any cultivating, selling and dispensing of marijuana" are pre-empted but that issuing registry cards to patients and caregivers is not.

My own feeling is that people can disagree about whether medical marijuana is a good idea, but once the voters have spoken directly through a plebiscite, state officials have no business deciding on their own to enforce federal law. My hope is that the 15 county attorneys and Arizona Attorney General Thomas Horne will allow the voice of the people to stand unfettered.