In Arizona it is illegal to operate a motor vehicle while impaired to even the slightest degree. Individuals taking prescription or non-prescription drugs that may potentially cause impairment of any type, need to be aware and concerned about the DUI consequences. This is especially true for medical marijuana patients because of the legal scrutiny associated with the prescription amongst law enforcement and in state courts. Even though you may lawfully be using medical marijuana for medicinal purposes, police officers may still arrest you if you are operating a vehicle and they believe that it has affected your ability to drive. There are two main DUI statutes that apply to someone that the police suspect are driving under the influence of marijuana: ARS 28-1381(A)(1) and ARS 28-1381(A)(3).
Section 28-1381(A)(3)is the DUI-drug statute most known for its “zero tolerance” mantra. For years this statute has affected people who use marijuana to manage their medical conditions, regardless of the legality of their use, because it forces them to choose between pain relief and independent commute. This DUI drug law implies that anyone driving with any drug or its metabolite (basically a waste product of the active part of the drug) in their system is DUI eligible. Since it can take 30-45 days for THC (the active ingredient in marijuana) and its metabolite (carboxy-THC) to completely leave a person’s system, this law makes anyone driving within seven weeks of consuming marijuana susceptible to a DUI charge.
Section 28-1381(A)(1) is a statute that defines Driving Under the Influence as being impaired to the slightest degree by any substance. There is no hard and fast rule about how much THC need be in a person’s body before their ability to drive is altered. As a practicing DUI attorney, many of my clients respect law enforcement and participate in the Field Sobriety Tests (FST’s) as an attempt to show the officer that they are not impaired. What most people do not understand is that by agreeing to perform these tests, you are actually harming yourself because the grading of field sobriety tests is skewed in the officer’s favor. Things that may seem like they are good to do during the test (for example, asking the officer a clarification question while walking the line) will actually be used against you. Further, because the grading of the FST’s is subjective, the officer will find clues of impairment if he/she wants to find clues of impairment, and you will be placed under arrest even if you think that you passed the tests. Because police officers for so long were trained that all uses of marijuana were illegal, they will often assume impairment either where none exists, or where the individuals’ underlying medical condition is actually the reason for some of the claimed “impairment.”
The most sobering advice I can give to medical marijuana patients is to be aware of the effects of your medication. Do not consume medical marijuana if you know you are about to drive. Take precautions and have the necessary documentation with you at all times in addition to your typical license and registration. The Medical Marijuana laws have made it an affirmative defense for an individual to possess a recommendation and a medical marijuana card issued by the state prior to the date of the alleged offense. Applying for a medical marijuana card after a DUI drug arrest will not act as a strong defense.
If you are arrested for DUI based on medical marijuana use, ask to speak to an experienced attorney no later than when you are asked questions about the last time you took your medication. Then, call us, we can help you fight these unfair charges.