As a criminal defense attorney in Arizona, I am consistently meeting people who are downright distraught and confused to have been charged with DUI Drugs (sometimes referred to as “drugged driving”) when the only drug they were using was medical marijuana.
In Arizona, a prosecutor has three possible methods for proving that a driver has violated the DUI statutes:
the Individual Analysis;
the Legal Limit and
The Individual Analysis – Because that we all have unique body chemistry and unique tolerance levels, this approach (whether it involves alcohol, drugs or both) is the most factually honest. The bottom line question here is: Was this driver actually impaired (or under the influence) of some substance at the time of driving? Often times, the answer to this question is not easily resolved. This is because almost every indicator of motor skills impairment can be caused by innocent factors. Bloodshot/watery eyes can simply mean an allergy sufferer. Most sober drivers make wide right turns into the wrong lane. Failure to walk a straight line might be because of knee trouble. As a result, most prosecutors dislike the Individual Analysis because it makes them work for a living and has a tendency to result in hung juries or acquittals.
The Legal Limit – In this subsection of the DUI statutes, the Legislature has established a precise limit of alcohol or drugs that are permissible in the human body. In Arizona, the current legal limit for alcohol is .08 percent. Like most states, Arizona does not currently have a legal limit specified for any DUI Drug charge. A small number of states have created such limits. For example, in the State of Washington, five (5) nanograms per milliliter is the legal limit for tetrahydrocannabinol (commonly known as THC – the physiologically active component of marijuana). See, Wash. Rev. Code 46.61.502(1)(b).
Zero Tolerance – In DUI Drug cases, the Legislature has made it illegal for a driver to have any amount of drugs in their system if they do not possess a valid prescription for that drug. This might include a driver who has consumed medication prescribed for a family member or friend or in the alternative, has consumed illegal drugs (for which no prescription is ever available). While alcohol and most illegal drugs are cleaned out of the body within a matter of hours, marijuana metabolites remain in the blood stream for a much longer time frame. Marijuana metabolites are the remnants of THC in the body after it has gone through the process of breaking down the drug. Evan after the body is no longer feeling the effects of THC, there are still modified remnants of it flowing through the bloodstream. For some users, marijuana metabolites can remain in their systems for several weeks, even if the user did not consume any marijuana on the day he or she were arrested for DUI.
Historically, DUI Drugs in Arizona has been a Zero Tolerance statute. Any trace of an illegal drug in one’s system resulted in a DUI Drug conviction regardless of how long ago the marijuana was smoked. Arizona’s Medical Marijuana Act (“AMMA”) has erased the Zero Tolerance standard for those with authorized medical marijuana cards. Specifically, A.R.S. § 36-2802(D) notes that, to obtain a DUI Drug conviction for a person with an authorized medical marijuana card, the prosecutor must prove that the driver was actually “under the influence of marijuana” and, more importantly, “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.”
The AMMA fails to tell us, however, exactly how much marijuana is too much. In like manner, the White House Office of National Drug Control Policy has asked all states to adopt drugged driving laws with specific limits, but never mentions what specific limit should be set for each drug. See http://www.whitehouse.gov/ondcp/drugged-driving.
In Arizona, the smell of marijuana alone can be enough to give a police officer probable cause to pursue a DUI Drug investigation. Since the odor of marijuana in vehicle upholstery can linger for several weeks, DUI Drugs has become an extremely common criminal charge. And in spite of the express language in the AMMA, many prosecutors are still pursuing DUI Drug cases as if they were pre-medical marijuana Zero Tolerance cases. These prosecutors are actively fighting to keep a defendant’s medical marijuana card excluded from the jury.