In Arizona, there are two ways that you can be charged with a marijuana related DUI:
1. Under the influence of marijuana and impaired to the slightest degree (A.R.S. 28-1381(A)(1))
First, you can be charged with DUI if you are under the influence of marijuana and your driving is found to be “impaired to the slightest degree.” It does not matter if you have a legal prescription for the marijuana. Arizona residents who will now benefit from the new Arizona Medical Marijuana law should be aware that their medical status will not grant them an automatic get-out-of-jail-card when it comes to DUI laws. If the State can prove the marijuana caused impaired driving, you can be charged and convicted of a DUI.
If the prosecutor is charging you with a Section 28-1381(A)(1) charge, he must prove that you were under the influence of marijuana, and your driving was impaired to the slightest degree. To prove you were under the influence of marijuana, the prosecutor will move to submit into evidence a blood or urine test showing the presence of marijuana in your system. A good marijuana DUI defense attorney will examine the evidence to determine how the urine or blood samples were collected and stored, and whether any compelling arguments can be made to suppress the evidence as inadmissible.
A good marijuana DUI defense attorney may also argue that the blood or urine tests do not show you were under the influence of marijuana, despite a test showing the presence of metabolites. Test results do not always distinguish between the psychoactive component of marijuana (“THC”) or its metabolite (“carboxy THC”), which is inactive and does not cause impairment, even though it can stay in your system for weeks. The presence of non-active metabolites do not indicate either impairment or when marijuana was last used or how often it was used.
Even the new Arizona Medical Marijuana law recognizes that someone may have marijuana metabolites that are inactive and do not cause the psychoactive responses caused by THC in marijuana. The new Arizona Medical Marijuana law states that “a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.” The new law recognizes that there are going to be instances of someone lawfully using medical marijuana and still showing metabolites in their system when driving even though they’re not affected by it.
Driving must be impaired to the slightest degree.
In addition to the state having to prove that you were under the influence of marijuana, the prosecutor also has to prove your driving was impaired. You don’t have to crash your vehicle for the prosecutor to prove your driving was impaired. Arizona law only requires the prosecutor to show driving is impaired “to the slightest degree.” The prosecutor will try to prove driving was impaired by introducing evidence of driving errors (even if they are minor), your physical appearance after you were stopped on the road, and performance on any Field Sobriety Tests. Note: decline the FSTs if asked to do so by an officer. These “coordination tests” are extremely difficult to pass and some officers will use them to find fault with whatever you do. It is naive to think if you show you can pass the coordination tests, the officer will let you go. Remember, you are not required by law to submit to FSTs. However, you ARE required by implied consent law to submit to a blood, breath, or urine test if requested by a police officer. If you do not submit to blood, breath, or urine, the police will get a warrant within minutes to take the sample and you will lose your driver’s license for a year. But always decline the FSTs as they hurt more than help.
2. Operating a motor vehicle with any trace of marijuana in your system (A.R.S. 28-1381(A)(3))
The second way you can be charged with DUI is by merely operating a motor vehicle with any marijuana or marijuana metabolite (“THC”) in your system. If the prosecutor is charging you with a Section 28-1381(A)(3) charge, he is not required to prove your driving was impaired, only that it was in your system. This “zero tolerance” law creates an interesting question for medical marijuana users who legally use marijuana, and then drive a car days later when the inactive metabolites may be present. If they are stopped and tested for DUI, how do these medical marijuana patients know the metabolites are present if they do not cause psychoactive symptoms/reactions? A good marijuana DUI defense lawyer may make a constitutional argument that you couldn’t have known inactive metabolites were present in your system and therefore you shouldn’t be criminally liable when you are not under the influence of marijuana. If you have been arrested for marijuana or any drug DUI, you should discuss these charges with an experienced DUI marijuana lawyer.
Penalties and Sentences for DUI marijuana misdemeanors in Arizona:
In Arizona, a first time DUI offense involving marijuana is a misdemeanor punishable by a minimum one day to a maximum six month jail sentence, fines and fees ranging from $1,470 or more, a mandatory substance abuse program, and you must put an ignition interlock device on your car. Additionally, if the conviction involves marijuana alone, your driver’s license will be revoked for one year. Ironically, if you are driving under the influence of marijuana AND alcohol, your license might only be suspended for 90 days because your plea bargain might involve pleading to the alcohol component of the DUI and not the marijuana. However, it’s only logical that alcohol and marijuana mixed together will make your driving more impaired so just don’t do it.
If this is a second misdemeanor DUI involving marijuana or another drug, the minimum jail sentence is 30 days, the fine is increased to a minimum of $3,430 and at least 30 hours of community service will be ordered in addition to an 18 month license revocation and ignition interlock device requirement.
If if the DUI is a third offense within 7 years, or your driver’s license was already suspended or revoked, or there was a child in the vehicle at the time, the DUI is charged as a felony and you could be facing a longer jail and/or prison sentence.
If you are charged with a violation of Arizona law involving marijuana and need experienced legal representation, call me, Karen Boehmer at 602-796-0882.