Driving Under the Influence of Medical Marijuana – Defense Lawyer

March 1, 2018 Posted in Misdemeanor

Medical marijuana became legal in Arizona when voters approved Proposition 203 in 2010. Many people who use medical marijuana also drive and are concerned about being charged with driving under the influence because they use medical marijuana. As discussed below, Arizona law does not immunize them from being charged with driving under the influence of marijuana.

The Arizona Medical Marijuana Act (AMMA) is found in Chapter 28.1 of Title 36 of the Arizona Revised Statutes. A.R.S. § 36-2802(D) states:

“This chapter does not authorize any person to engage in, and does not prevent the imposition of any civil, criminal or other penalties for engaging in, the following conduct:

A. Undertaking any task under the influence of marijuana that would constitute negligence or professional malpractice.

B. Possessing or engaging in the medical use of marijuana:

1. On a school bus.
2. On the grounds of any preschool or primary or secondary school.
3. In any correctional facility.

C. Smoking marijuana:

1. On any form of public transportation.
2. In any public place.

D. Operating, navigating or being in actual physical control of any motor vehicle, aircraft or motorboat while under the influence of marijuana, except 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.”

E. Using marijuana except as authorized under this chapter.”

The relevant Arizona Driving under the Influence statute is A.R.S. § 28-1381(A)(3):

“A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

3. While there is any drug defined in section 13-3401 or its metabolite in the person’s body.”

The Supreme Court of Arizona has held that a medical marijuana patient has an affirmative defense to driving under the influence in Dobson v. McClennen, 238 Ariz. 389, 393 ¶ 20 (2015) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2015/CV140313PR.pdf:

“A qualifying patient may be convicted of an (A)(3) violation 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 may establish an affirmative defense to such a charge by showing that his or her use was authorized by the AMMA—which is subject to the rebuttable presumption under § 36–2811(A)(2)—and that the marijuana or its metabolite was in a concentration insufficient to cause impairment. The patient bears the burden of proof on the latter point by a preponderance of the evidence, as with other affirmative defenses. SeeA.R.S. § 13–205(“[A] defendant shall prove any affirmative defense raised by a preponderance of the evidence.”).”

The Arizona Court of Appeals found that a medical marijuana patient does not have to present expert testimony in order to establish his or her affirmative defense in Ishak v. McClennen, 241 Ariz. 364, 372 ¶ 20 (App. 2016) http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2016/1%20CA-SA%2016-0134.pdf:

“In sum, an authorized medical marijuana user charged with violating § 28-1381(A)(3) may establish the affirmative defense afforded by § 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 cardholder may satisfy that burden by, inter alia, cross-examining the arresting officer and the State’s expert forensic scientist and/or by offering any admissible evidence (including his or her own testimony) relevant to proving whether he or she was impaired at the time of the stop. That evidence may or may not include, as here, expert testimony that the cardholder’s THC concentration is not always sufficient to cause impairment.”

If you are a medical marijuana patient and have been charged with driving under the influence of marijuana, you need an experienced DUI/DWI attorney to represent you. Attorney Gary Rohlwing has over three decades of experience. Please call him today for a free consultation.

Law Offices of Gary L Rohlwing
7112 N 55th Ave
Glendale, AZ 85301
(623) 937-1692
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