Marijuana DUI: Impacts of Arizona’s Rejection of Recreational Marijuana on Drugged Driving Charges

Proposition 205 Results for Legalization of Marijuana

In the November 2016 election, five states including Arizona, had legalization of recreational marijuana on the ballot for voters. Of those, it passed in four states. But Arizona was not one of them.

Proposition 205 gave Arizona voters the opportunity to legalize recreational use of marijuana for individuals 21 or older, failed in Arizona.

According to the Arizona Secretary of State, 1,061,378 voters (51.95 percent) voted no on Prop 205 while 981,509 voters (48.05 percent) supported the measure.

As a result of this vote, the possession, sale, or manufacture of cannabis remains illegal in Arizona. Only state are approved patients with qualifying conditions who have been issued medical marijuana cards can legally purchase, possess, or use marijuana in Arizona.

Some opponents of Proposition 205 were concerned that approved dispensaries might possibly have a monopoly on the marijuana market in Arizona. Others questioned how much of the money marijuana sales would actually go to the state’s school system, and other state agencies.

Opponents argued that marijuana legalization would increase driving under the influence (DUI) violations in the state.

While Prop 205 would have prohibited impaired driving due to marijuana use, lack of a statutory limit or the ability to accurately measure a driver’s impairment continues to be problematic for both users and the state in prosecuting marijuana DUI charges.

Some states that have legalized marijuana for both medical and recreational use, have a statutory limit which serves as the legal quantity of THC a person is allowed to have in their system. Depending on the state, the allowable amount is 2 to 5 nanograms (ng) of THC.

Arizona, however has no such statutory limit of measurement, even for drivers who are qualified under Arizona’s Medical Marijuana Act (AMMA).

Recent National Highway Traffic & Safety Administration (NHTSA) statistics show that marijuana DUI-related crashes have increased dramatically over the last decade.

Drugged Driving Increases in Arizona on a National Level

The most recent statistics reported by the Arizona Governor’s Office of Highway Safety indicate that Arizona’s DUI arrests have increased tenfold over the last decade.

Recent statistics reported by the National Highway Traffic Safety Administration indicate that the number of traffic deaths in which at least one driver tested positive for drugs has nearly doubled over the last 15 years.

According to USA Today, 6,612 of the 32,166 fatal crashes (or about 20.55 percent) in 2015 were drug-related as opposed to 1,716 of the 35,780 fatal crashes (or about 4.8 percent) in 1993.

Recent media reports noted that a separate NHTSA study that found 15.1 percent of 11,000 weekend, nighttime drivers who tested positive for illegal drugs in 2013 and 2014 was an increase from the 12.4 percent of drivers in 2007. Marijuana represented the largest increase in that study, as 12.6% tested positive in 2013 and 2014, up from 8.6% in 2007.

Not all experts agree, however, that driving under the influence of marijuana, particularly, can be identified as the cause of the crashes.

The National Institute on Drug Abuse noted that it is difficult to measure how many crashes are caused by drugged driving because:

There is currently no effective roadside test for the drug levels of drivers;

Police officers rarely test for drugs when alleged DUI offenders have a blood alcohol concentration (BAC) high enough to merit a DUI charge; and

Several alleged offenders have both drugs and alcohol in their systems, making it difficult to ascertain which substance was the predominant cause of impairment.

Arizona Marijuana DUI Laws

Arizona Revised Statute § 28-1381 makes it illegal for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.

If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle.

While there is any drug defined in Arizona Revised Statute § 13-3401 or its metabolite in the person’s body.

Cannabis is classified as a narcotic drug under Arizona Revised Statute § 13-3401. Tetrahydrocannabinol (THC) is the principal psychoactive chemical in marijuana, and it can appear in blood or urine tests several days after cannabis was originally consumed. A person who uses marijuana a single time can still test positive for the drug up to three days later, while chronic heavy users of cannabis may test positive up to one month after their last use.

If an alleged offender is convicted of marijuana DUI, his or sentence could possibly involve any of the following:

First Offense — Class 1 misdemeanor punishable by minimum of 10 consecutive days up to six months in jail, driver’s license suspended for 90 days, and/or fines and fees of at least $1,250;

Second Offense within 84 Months (Seven Years) — Class 1 misdemeanor punishable by minimum of 90 days (30 of which must be served consecutively) up to six months in jail, driver’s license revoked for one year, and/or fines and fees of at least $3,000;

Third or Subsequent Offense — Class 4 felony punishable by minimum of four months up to 3.75 years in prison, driver’s license revoked for at least one year, and/or fines and fees of at least $4,000.

What to Do If You Are Arrested for Marijuana DUI

When police officers suspect that drivers might be under the influence of a controlled substance, authorities will frequently seek the assistance of a drug recognition expert (DRE). A DRE is a law enforcement officer who is trained to identify people whose ability to drive is impaired by controlled substances.

In order to be certified as a DRE, officers in Arizona must complete all three phases of the Arizona Drug Evaluation and Classification program. The first phase consists of a two-day (16-hour) preschool, the second phase is a seven-day (56-hour) classroom program, and the third phase is field certification that is conducted at periodic intervals for the next 60 to 90 days.

The International Association of Chiefs of Police (IACP) is the regulating and credentialing organization for the Drug Evaluation and Classification Program. The IACP established the following 12-step protocol that DREs use to determine whether an alleged offender is impaired by drugs and what category or combination of categories of drugs are the likely cause of the impairment:

Breath alcohol test (typically performed by arresting officer before contacting DRE);

DRE interview of the arresting officer;

Preliminary examination;

Examination of the eyes;

Divided attention psychophysical tests;

Examination of vital signs;

Dark room examinations;

Examination for muscle tone;

Examination for injection sites;

Subject’s statements and other observations;

Opinions of the evaluator; and

Toxicological examination.

The major problem with these examinations is that by having DREs interview arresting officers before conducting any tests, the DRE is usually subject to a confirmation bias that deprives the proceedings of any objectivity. Furthermore, DREs are rarely—if ever—qualified to understand medical conditions, which means that they lack the knowledge to understand whether certain physical or mental symptoms that are interpreted to be impairment by controlled substances may be actually the result of completely unrelated factors.

When a person has been arrested for a marijuana-related DUI in Arizona, it is critical to immediately retain legal counsel. An experienced attorney can not only investigate whether there were any errors by police officers or DREs in the administration of these tests, but also challenge whether the alleged offender was actually under the influence of cannabis at the time of the arrest if that person tested positive for marijuana.

Criminal Defense Lawyer for Alleged Marijuana DUI Crimes in Tempe, AZ

If you were arrested for an alleged marijuana DUI offense in Arizona, it is in your best interest to seek legal representation as soon as possible. The Law Office of James E. Novak defends people accused of drug-related DUI crimes all over the greater Maricopa County area.

James E. Novak is a Tempe criminal defense attorney who has experience handling cannabis offenses on both sides of the aisle. He is a former prosecutor in Maricopa County who knows which types of evidence can be used to possibly get criminal charges reduced or dismissed.

The Law Office of James E. Novak represents clients in Phoenix, Gilbert, Scottsdale, Mesa, Chandler, Tempe, and several other surrounding communities in Maricopa County. Our lawyer will aggressively defend you against your DUI charges and work tirelessly to help you achieve the most favorable outcome that results in the fewest possible penalties.

James E. Novak will provide a free, confidential consultation that will allow him to review your case and discuss all of your legal options. Call (480) 413-1499 or submit an online contact form today to take advantage of your free consultation.

Additional Resources

Additional Articles of Interest