2023 Update: Marijuana DUI in Arizona
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Misdemeanor DUI Defense in Arizona – Our Goal is to Get Your Marijuana DUI Dismissed
With the passing of Proposition 207 in the November 2020 election, recreational marijuana is now legal in Arizona. Since marijuana use in Arizona by adults over the age of 21 is legal for both recreational and medical purposes, some people might be unaware that they can be charged with a DUI on marijuana if they are driving while impaired to the slightest degree.
Even though marijuana is now legal, it is still against the law if you “drive while high” – but there are numerous factors to determine whether or not a person is impaired.
If you are facing drugged driving charges, you should get help from an experienced DUI attorney at Colburn Hintze Maletta.
What is a Marijuana DUI in Arizona?
Like alcohol, it is against Arizona DUI laws to use marijuana that has THC while in actual physical control of a vehicle and you can be charged with a DUI if you are impaired by it. Unlike alcohol, which has a per se limit of 0.08, the state does not have a per se limit for marijuana in your system.
Under ARS 28-1381, you can be charged with driving under the influence of marijuana if you are impaired to the slightest degree or when you have the presence of active marijuana in your system.
If you are younger than 21, you cannot drive with any amount of marijuana in your system whether or not your driving is impaired.
Unlike alcohol, there is no breath test available for marijuana. If an officer suspects that you were using marijuana while driving, you will be asked to consent to a blood test, or the officer will secure a warrant to draw blood from you for testing.
If you refuse to submit to a blood test, you will face administrative penalties on your license from the Arizona Department of Motor Vehicles. Under ARS 28-1321, all drivers in Arizona are deemed to have given implied consent for their breath, blood, or urine to be tested for the presence of alcohol or drugs.
A refusal can result in a 12-month suspension of your license that will be consecutive to any license suspension you might receive for a DUI conviction. Refusing to submit to a blood test can also be used against you as evidence at a DUI trial.
The blood test used to test for marijuana will determine whether certain THC metabolites are present in your blood. If active metabolites are identified in your blood, you can be charged for drugged driving. You can also be charged with this offense if you are impaired to the slightest degree. This includes any impairment of your motor coordination as indicated by erratic driving, slurred speech, trouble walking or standing, and failing the roadside tests administered by the officer.
DUI Drug Laws and Medical Marijuana
Medical marijuana has technically been legal in Arizona since 2010. However, you can still be charged with a DUI as a medical marijuana patient if you drive under the influence. Like any other prescribed drug, you can be charged with a DUI if you ingest marijuana containing tetrahydrocannabinol (THC) before driving or while driving. Having a medical marijuana card does not prevent you from being charged.
One problem with the DUI laws for medical marijuana patients is the inclusion of a section of the DUI law that allows people to be charged if they have marijuana or its metabolites in their systems. Unlike alcohol, which is processed through your body within a few hours, marijuana metabolites can remain in your system for days.
The Arizona Medical Marijuana Act allows qualifying patients to carry a medical marijuana card to show that they can legally possess and use a limited amount of marijuana for medical purposes. This conflicts with the state’s DUI law, which provides that people can be charged with a DUI if they have any amount of marijuana or its metabolites in their systems.
In Dobson v. McClennen, 238 Ariz. 389 (2015), the Arizona Supreme Court resolved this conflict. The court found that having a medical marijuana card can be asserted as an affirmative defense against a DUI charged under ARS 28-1381(A)(3). The burden of proof will then shift to the prosecutor to prove beyond a reasonable doubt that the marijuana in your system impaired your ability to drive safely.
What is Driving Under the Influence?
You can be charged with a DUI on marijuana when you are driving or in actual physical control of a car while you are under the influence of THC or a combination of cannabis and another substance. Actual physical control of a vehicle includes many different things.
You do not have to be physically driving your vehicle to be charged with a DUI if you are deemed to be in actual physical control of it.
The courts consider a number of factors when deciding whether someone was in actual physical control of a vehicle, including the following:
- Whether your vehicle was illegally parked or legally parked
- Where you were located in the vehicle
- Whether you were sleeping or awake
- Whether your keys were in the ignition or on your person
- Whether the engine was turned on
- Whether the headlights were on
- Whether you voluntarily pulled off the road
- The time of day and weather conditions
- Whether the car’s heater or air conditioner was on
- Whether the car’s windows were up or down
- Whether you had your seatbelt on
In cases in which a motorist is charged with a DUI while seated in a parked car, the prosecutor and defense attorney will often argue about whether the defendant was in actual physical control of the vehicle or was instead simply trying to sleep it off after using drugs or alcohol.
Determining actual physical control requires a case-by-case, factual analysis. An experienced DUI defense attorney may be able to get your DUI charges dismissed by arguing that you were using your vehicle as a temporary shelter or “safe harbor.”
What are the Penalties for a Marijuana DUI?
The penalties for DUIs involving marijuana are the same as the penalties for alcohol-related DUI convictions, except that in most cases you will not be required to install an ignition interlock device in your vehicle.
A first-time Marijuana DUI is a misdemeanor carrying the following penalties:
- Minimum 10 days in jail with 24 hours mandatory and the remaining nine days suspended on completion of an alcohol and drug assessment and classes
- Minimum fines and assessment totaling about $1,600
- Substance abuse screening and any recommended treatment
- Community service may be ordered
- 90-day suspension of your driver’s license
- 8 Points on your Arizona MVD record
- Traffic Survival School
If you are convicted of a second DUI involving marijuana, or alcohol, within seven years, it is a misdemeanor carrying the following potential penalties:
- Mandatory minimum of 90 days in jail with 60 suspended on completion of a substance abuse screening and classes
- Fines and assessments totaling approximately $3,600
- Substance abuse screening and any recommended treatment
- At least 30 hours of community service
- 12-month suspension of your driver’s license
- 8 Points on your Arizona MVD record
- Traffic Survival School
If you are convicted of a third DUI involving marijuana, or alcohol, within seven years, it is a felony aggravated DUI. This is a felony DUI carrying the following penalties:
- Mandatory minimum four months in prison
- Fine of at least $4,000
- Substance abuse screening and completion of any recommended treatment
- Three-year revocation of your driver’s license
- 8 Points on your Arizona MVD record
- Traffic Survival School
Defenses to Marijuana DUI in Arizona Charges
If you are charged with a marijuana-related DUI in Arizona, it is still possible to defend against your charges, especially in light of the change in Arizona law due to the passage of Proposition 207 in November 2020. Your defense lawyer at Colburn Hintze Maletta will carefully review the evidence and reports to identify any problems the state might have with its case against you.
Some of the potential defenses that might be raised include the following:
- No reasonable suspicion for your stop
- No probable cause to arrest you
- Lack of Miranda warnings before an interrogation
- Chain of custody problems with your blood sample
- Lab testing errors
- Problems with how the drug recognition officer administered the tests
- Lack of impairment due to marijuana tolerance
Before an officer can stop your car, he or she must have a reasonable suspicion that you have violated the traffic laws or have committed a crime.
An officer cannot arbitrarily pull you over based on a hunch. If the officer did not have a good reason to stop you, your attorney can file a motion to challenge the stop.
If this type of motion is successful, all of the evidence subsequently gathered would be suppressed, likely forcing the prosecution to dismiss your case.
Police officers must also develop probable cause before they can arrest you. If the officer did not have sufficient evidence to support a finding of probable cause, your attorney could file a motion. If the court grants the motion, any statements or evidence gathered after your arrest may be suppressed, including your blood test results.
Blood tests are not infallible. Your attorney will review how your blood was drawn, stored, transported, and tested to see if there were any errors. If there is a chain of custody problem, your blood test results may be deemed to be inadmissible as evidence against you.
Finally, police officers must read you your Miranda rights before interrogating you in custody. If the officers subjected you to a custodial interrogation after failing to Mirandize you, any statements you subsequently made may be inadmissible.
If you are a frequent marijuana user, you may have built up a level of tolerance to certain amounts of THC, which can be used to argue a lack of impairment.
This defense can be used in conjunction with the argument that there is no consensus among the scientific community regarding a per se level of impairment based on the amount of THC found in a person’s blood.
Other defenses might also be available. Your attorney will discuss the defenses you might raise against your charges.
Speak to our Marijuana DUI Lawyers and get Immediate Help
If you are facing a marijuana DUI charge, you should get legal help from the experienced DUI attorneys at Colburn Hintze Maletta.
All of our attorneys are extremely well-versed in the latest Arizona Laws regarding Marijuana and have successfully defended numerous clients. Our ultimate goal is to get your case completely dismissed, and we have the tools and know-how to do so!
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