An appeal has been filed asking the Arizona Supreme Court to rule on an issue that has implications for anyone who smokes marijuana, including medical marijuana users. The defendant in the case, a medical marijuana user, was charged under the DUI statute with driving with a drug in his body. The issue is whether he can be prosecuted absent any claim that he was impaired, and based solely on the presence of a metabolite of marijuana in his system. Metabolites indicate that the person ingested marijuana, but remain present and detectable in the blood long after the effect of the drug has worn off.
At trial, the judge ruled that it made no sense to prosecute the driver absent any evidence that he was intoxicated. The Court of Appeals overturned the decision in February, and the case is now before the Arizona Supreme Court, which has yet to decide if it will hear the case.
It is, of course, illegal to drive under the influence of alcohol or drugs, or a combination of the two. And if you are intoxicated, the fact that you are legally entitled to use a drug is no defense to the DUI charge. Whether it’s medical marijuana, or prescription drugs, if you are under the influence, that’s the extent of it.
But the issue actually involves more than simply intoxication. Legally, it arises as the result of A.R.S. 28-1381A3. That statute provides that is it is unlawful to drive or to be in actual physical control of a vehicle while there is any dangerous drug, narcotic drug, or any one of a number of substances, including marijuana, or the metabolite of any such drug, in your system.
You might be asking what happens when you take a prescription drug that shows up in your blood or urine long after the drug has any effect on your ability to drive. The statute answers this question by providing that you are not guilty of violating section 1381A3 if you are using the drug “as prescribed by” a licensed medical practitioner. So if you are prescribed even a narcotic drug, you cannot be convicted of violating the statute (absent intoxication), as long as you are taking it as prescribed.
Along comes medical marijuana. The Medical Marijuana Act legalizes the possession and use of the substance if you have a valid marijuana card. With pot, the doctor writes a “certification”, and the card is issued by ADHS, but technically it is not a “prescription.” And it is that word that separates, in the minds of some jurists, marijuana from other drugs. The defendant in the case now on appeal is arguing that this is a distinction without a difference. The logic behind section 1381A3 is not to punish those who, while not intoxicated, drive with the remnants of a drug (taken legally) in their system. The counterargument is that if the legislature wanted to extend the prescription drug defense to marijuana, they could have done that at the time medical marijuana was legalized. As attorneys who see how statutes come into being on a regular basis, we’re going to suggest that the legislature’s failure to add legal marijuana was just that – a failure on the part of the legislature, and no implication should be drawn from it.
The issue is a significant one. If you are a medical marijuana user and the decision of the Court of Appeals is upheld by the Supreme Court, you could effectively be barred from legally driving in the state, given the length of time the metabolite remains in your system.
Law Offices of David A. Black
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Phoenix, AZ 85004