Arizona Court of Appeals Provides Affirmative Defense for Medical Marijuana Patients Charged with DUI

How High is Too High to Drive?

In November 2016, Arizona voters rejected a measure to legalize recreational marijuana, with many people citing concerns about a possible increase in driving under the influence (DUI) violations as being the reason behind their opposition. Appellate courts in Arizona, however, have made a number of decisions in marijuana DUI cases that make it more difficult for prosecutors to convict registered qualifying patients under the Arizona Medical Marijuana Act (AMMA).

The most such recent decision came from Division One of the Arizona Court of Appeals. On December 22, 2016, the Court of Appeals vacated the conviction of man charged with driving while marijuana or its metabolite was in his body.

Nadir Ishak was stopped by police after an officer saw his car drift several inches into the next lane at roughly 7 p.m. The officer testified that Ishak’s eyes were bloodshot and “watery,” and Ishak told police that he had smoke marijuana upon awakening that morning after being asked about when he had last smoked the substance. Ishak also performed several field sobriety tests, experiencing “body tremors and eye tremors” during one such test.

Ishak was charged with driving while impaired to the slightest degree and driving with marijuana or its metabolite in his body. The municipal court granted the State’s motion in limine to preclude evidence that Ishak possessed a medical marijuana card, arguing that evidence of his medical marijuana card was irrelevant to the charges against him.

At trial, the State called an expert who testified that a sample of Ishak’s blood taken after the stop contained a concentration of 26.9 ng/ml of the marijuana metabolite tetrahydrocannabinol (THC). Ishak called his own expert who testified that while the concentration of THC was a high number, there was “no consensus” as to what level of THC impairs all people. The jury ultimately acquitted Ishak of driving while impaired but convicted him of driving while marijuana or its metabolite was in his body, and he was sentenced to 180 days’ incarceration.

By the time Ishak appealed his conviction to the superior court, the Arizona Supreme Court had ruled in Dobson v. McClennen, 238 Ariz. 389, 393, ¶ 23 (2015) that the AMMA grants an affirmative defense to a defendant charged under Arizona Revised Statute § 28-1381(A)(3) who can show he or she is authorized to use medical marijuana and “that the concentration of marijuana or its impairing metabolite in [his or her body] was insufficient to cause impairment.” The superior court ruled that even if the municipal court erred by barring Ishak from mentioning his medical marijuana card, the error was harmless because Ishak did not show that he would have been able to obtain an expert who would have been willing to testify that Ishak would not have been impaired at 26.9 ng/ml of THC.

The Court of Appeals concluded that an authorized medical marijuana user charged with violating Arizona Revised Statute § 28-1381(A)(3) can establish the affirmative defense afforded by Arizona Revised Statute § 36-2802(D) by “showing by a preponderance of the evidence that the marijuana metabolite concentration in his or her system was insufficient to cause him or her to be impaired at the time he or she operated or was in actual physical control of a motor vehicle.” The court noted that neither the AMMA nor Dobson requires a medical marijuana cardholder charged with violating the aforementioned statute to offer proof that the concentration of THC in his or her blood was insufficient to cause impairment “in people generally” or in any person.

“Further supporting this conclusion is the reality that, at present, there is no presumptive impairment limit established by law, and, according to the evidence here, there is no scientific consensus about the concentration of THC that generally is sufficient to impair a human being,” the Court of Appeals wrote.

The Dobson Precedent

In addition to the AMMA provision granting an affirmative defense to individuals charged with driving with marijuana or its metabolite in their bodies, the other major basis for the decision in Ishak was the Arizona Supreme Court’s decision in Dobson v. McClennen (P.3d, 2015 WL 7353847, Arizona Supreme Court 2015). The Supreme Court held in that case that AMMA affords an affirmative defense for alleged offenders charged with driving with any amount of certain drugs (including marijuana) or their impairing metabolites in their bodies if the cardholder shows that the marijuana or its metabolite was in a concentration insufficient to cause impairment.

Kristina Dobson and Marvelle Anderson were each charged with driving while impaired to the slightest degree and driving with marijuana or its metabolite in the person’s body. Blood tests showed that both individuals had marijuana and its impairing metabolite in their bodies, and neither Dobson nor Anderson sought to introduce any evidence other than their respective medical marijuana cards.

The State dismissed the driving while impaired to the slightest degree charges, but both individuals were convicted of driving with marijuana or its metabolite in their bodies. The Maricopa County Superior Court affirmed their convictions and the Court of Appeals denied relief after holding that neither Arizona Revised Statute § 36-2811(B) nor Arizona Revised Statute § 36-2802(D) under the AMMA provides immunity for defendants facing charges for driving with an impermissible drug or impairing metabolite in their bodies.

The Supreme Court addressed the many ways in which Arizona laws seemingly conflict in regards to marijuana DUI crimes. While the Supreme Court vacated the opinion of the court of appeals and affirmed Dobson and Anderson’s convictions, it also concluded that “the AMMA affords an affirmative defense for those patients who can show, by a preponderance of the evidence, that the concentration of marijuana or its impairing metabolite in their bodies was insufficient to cause impairment.”

The Court noted that a qualifying patient can be convicted of a violation of Arizona Revised Statute § 28-1381(A)(3) if the state proves beyond a reasonable doubt that the patient, while driving or in control of a vehicle, had marijuana or its impairing metabolite in the patient’s body. The patient bears the burden of proving the marijuana or its metabolite was in a concentration insufficient to cause impairment by a preponderance of the evidence.

The beyond a reasonable doubt standard of proof for prosecutors is much higher than the preponderance of the evidence standard for alleged offenders. Beyond a reasonable doubt essentially translates to “no other logical explanation,” while preponderance of the evidence means “more likely than not” or that 51 percent or more of the evidence favors the person presenting the argument.

Arizona Affirmative Defenses

Affirmative defenses essentially justify otherwise criminal conduct by alleged offenders. For example, people who have been charged with assault or other violent crimes often raise affirmative defenses such as self-defense, defense of another person or property, or necessity.

While the recent court rulings in Arizona have provided for an affirmative defense to be presented by registered qualifying medical marijuana patients charged with marijuana DUI offenses, the alleged offenders still need to demonstrate that the evidence of marijuana or its metabolites in their bodies was not sufficient to cause impairment. On its face, this can sound like an extremely difficult burden, but courts in Arizona have recognized that there is “no generally applicable concentration that can be identified as an indicator of impairment for illegal drugs.”

Violations of Arizona Revised Statute § 28-1381 are class 1 misdemeanors for first offenses or second offenses within 84 months (seven years) of the original offense. Third or subsequent offenses become class 4 felony offenses. Convictions in these cases can be punishable as follows:

First Offense — 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) — 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 — 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.

It is important to remember that the provision of Arizona Revised Statute § 28-1381(A)(3) that allows an alleged offender to be charged with this crime if the person has any drug defined in Arizona Revised Statute § 13-3401 or its metabolite in his or her body often leads to people being arrested well after drugs were originally consumed. According to the Mayo Clinic, a single use of marijuana can be detectable for up to three days after initial use. Chronic heavy users of marijuana may test positive for as many as 30 days after last use.

What to Do Following a Marijuana DUI Arrest

When police suspect a person of driving under the influence of a controlled substance, authorities may turn to a law enforcement officer specifically trained to identify people impaired by controlled substances known as a drug recognition expert (DRE). A DRE will come to the scene of the traffic stop and perform a variety of tests on the alleged offender in accordance with a 12-step protocol.

If you are stopped for allegedly being under the influence of marijuana while driving, it is in your best interest to exercise your right to remain silent. You should avoid saying anything about your use (or lack of use) of cannabis until you have legal counsel.

Police will charge alleged offenders with controlled substance-related DUI offenses when they lack the evidence necessary to prove that such people were intoxicated by alcohol. Whereas breath tests provide a relatively easy and straightforward way for authorities to collect evidence of intoxication in alleged alcohol-related DUI cases, so-called “drugged driving” crimes are much more complex.

Police will often have alleged offenders submit to certain more invasive methods of testing, such as urine or blood tests. Refusal to submit to these tests can result in the same penalties as refusing to submit to breath tests, and authorities will often have judges on call to authorize warrants that allow them to draw blood by force when necessary.

Whether you consented to a blood or urine test or a sample was taken without your consent, the handling of these tests is extremely important. State law in Arizona specifically mandates the types of people who are authorized to collect these samples as well as the manner in which the samples are to be collected and stored.

Any deviation from the standards can result in blood or urine evidence possibly being contaminated and thus being inadmissible in court. It is critical for any person who has been charged with a marijuana DUI offense in Maricopa County to immediately contact an experienced criminal defense attorney who can investigate how the tests were handled and fight to possibly get the criminal charges reduced or dismissed.

Criminal Defense Lawyer for Marijuana DUI Arrests in Tempe, AZ

Regardless of whether you are a legal medical marijuana cardholder, it is in your best interest to seek legal representation as soon as possible if you were recently arrested for a marijuana-related DUI offense in Arizona. The Law Office of James E. Novak aggressively defends individuals accused of all kind of DUI crimes.

Tempe criminal defense attorney James E. Novak can investigate every aspect of your arrest, from the legality of the initial stop to the accuracy of any specimen test to determine all of your possible defenses. As a former prosecutor in Maricopa County, he also understands the most effective ways to raise affirmative defenses.

The Law Office of James E. Novak represents clients in Mesa, Scottsdale, Phoenix, Tempe, Gilbert, Chandler, and many surrounding areas of Maricopa County. James E. Novak has nearly two decades of experience handling marijuana and DUI cases.

Call (480) 413-1499 or complete an online contact form to have our lawyer provide an honest and thorough evaluation of your case during a free, confidential consultation.

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