The Truth About AZ Prop 205

I've been watching the local news and have seen what can only be described as a series of inaccurate articles against Prop 205. The one subject that comes up time and time again is that Prop 205 makes DUI prosecutions for marijuana more difficult. The claims made by government officials and parroted by news personalities are so incorrect, that the authors of these statements are either completely ignorant of DUI laws and prosecution or they are intentionally misleading their viewers.

Before you can understand why these claims are so wrong, you'll need to briefly understand Arizona's DUI laws. In Arizona, when someone is charged with a drug DUI they are charged with a minimum of two offenses:

  • The one that is included in almost every DUI prosecution is ARS 28-1381A1- aka "DUI- Driving While Impaired to Even the Slightest Degree". This DUI violation only requires that someone is impaired to the slightest degree by some drug, alcohol, or vapor. It is why Arizona is often referred to as a zero tolerance State.
  • ARS 28-1381A3, or "DUI Drug", is the charge that allows the state to prosecute people for driving with any drug or metabolite in their system. This includes prescription medications, over the counter medications, street drugs, and marijuana.

If you are legally allowed to take the drug/medication you may have a defense to the DUI- Drug charge. However, that defense ONLY applies to the "DUI-Drug" charge. It can never be used as a defense or excuse for "DUI Impaired" charge.

An example would be if someone is taking their legally prescribed medication, let's say Vicodin, and drives an automobile, they may be able to use their lawful doctor's prescription as a defense against the "DUI-Drug" charge. However, if that medication impaired them and their ability to drive to even the slightest degree, they would not be afforded a defense to the "DUI Impaired" charge. Juries often hear evidence and convict people of "DUI- Driving While Impaired to Even the Slightest Degree" when the medications that they took were perfectly legal, lawful, and doctor recommended. From a societal standpoint this makes sense. The common sense rule put into action here is that you can't be impaired and drive, period. This is true even if you have a legal prescription.

As it stands today, if someone ingests marijuana, and then operates a motor vehicle, then they will be charged with both the "DUI Impaired" charge and the "DUI-Drug" charge. Again if they have a medical marijuana card, they may have a defense to the "DUI-Drug" charge only. Therefore, in order for the state of Arizona to convict someone of a DUI, all that they need only prove that the driver was impaired to the slightest degree or that they had active ingredient of marijuana (or its metabolite) in their blood.

How is this changed by AZ Prop 205? All AZ Prop 205 does is to say that a person cannot be convicted of a DUI because of the presence of marijuana in their system alone. In essence, it says you can't be convicted of DUI because at some point prior you consumed marijuana. Again, this is sound public policy if we're talking about legalizing marijuana. Why would the fact that someone consumed marijuana days or weeks ago and then drove be a crime if we are legalizing marijuana for people to consume? However, it still is and always will be a crime to drive high. Let me repeat that: It still is and always will be a crime to drive high. If someone consumes marijuana and drives an automobile while impaired to even the slightest degree the person can be, will be, and should be prosecuted and convicted of a DUI.

The multiple news reports that I have seen always conflate the two separate charges. They intentionally make it seem that drivers will either a) be able to legally drive stoned (they cannot), or b) make DUI prosecutions more difficult (also false). These news stories need to tell the whole truth and clarify their reporting so that they don't confuse their viewership. DUI's will still be prosecuted after AZ Prop 205 passes, and should be prosecuted when people are making bad choices and getting behind the wheel while impaired by any substance that they've consumed.