Arizona Medical Marijuana Law And DUI

medical marijuana in Arizona is like taking a prescription drug for purposes of Tucson AZ DUI charges
Arizona Drug DUI Charges

Many people don’t realize that you can get a DUI in Arizona for driving after having taken prescription medications.  This is actually fairly common.  There are two different ways this type of DUI can be charged: (1) driving while impaired to the slightest degree by any drug (A.R.S. §28-1381(A)(1)), or (2) driving with any of the drugs listed in A.R.S. 13-3401, which includes drugs present in many medications, in your body (A.R.S. §28-1381(A)(3)).  Most cases include both charges.  The second type of charge doesn’t even require the State to prove that you were impaired by the drug, only that the drug, or a metabolite of the drug (as long as the metabolite can cause impairment), was in your body.  However, if you are using the drug as prescribed by a doctor it is normally a defense to this second type of charge.

Is An Arizona Medical Marijuana Card A Defense To DUI?

Now that Arizona has legalized the use of marijuana for medical purposes, you’re probably wondering whether a medical marijuana card provides a defense to a marijuana DUI in Arizona?  Unfortunately, the answer is probably not.  If you have been charged with a DUI in Pima County, the prosecutor will likely file a motion asking the court to preclude the defense from presenting any evidence to the jury about your use of medical marijuana.  The argument I have seen is that a card issued under the Arizona medical marijuana law is not technically a “prescription”, as required for an affirmative defense to the second type of drug DUI charge, but is only a written certification from the state that allows a person to purchase, possess and use marijuana.  The state argues that a doctor cannot actually prescribe marijuana, because it is a Schedule I controlled substance, and can only recommend using medical marijuana.  The doctor merely signs a patient’s medical marijuana card application, but does not write a prescription.

I have successfully argued that a client’s status as a medical marijuana card holder should still be presented to the jury for three reasons:

  1. It is relevant to the issue of impairment, which is an element of the first type of drug DUI charge, because it establishes that the client has a certain level of tolerance to marijuana;
  2. It is relevant to the issue of impairment because A.R.S. §36-2802 states that a registered qualifying medical marijuana patient shall not be considered under the influence of marijuana solely because of the presence of marijuana metabolites;
  3. The absence of this evidence is prejudicial to the client because, if the jury is unaware that the client’s use of marijuana was authorized for medical reasons, the jury is left to assume that the client was breaking the law by using illegal drugs recreationally.

Even if evidence of the medical marijuana card is admitted, however, the jury is often instructed that it is not a defense to the second type of drug DUI charge because the card does not constitute a prescription.  I am optimistic that this may change in the near future, either through a broader interpretation of the word “prescribed” or a direct change to the statutory language by the state legislature.  What do you think?

* This blog is published by Tucson criminal defense and DUI lawyer Nathan D. Leonardo. Nothing on this website is intended to create an attorney-client relationship. The information provided herein does not constitute legal advice, but is for general information purposes only. If you have a legal question, you can contact us online or call (520) 314-4125.

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