The officer determined that the driver was not impaired. As the officer was preparing paperwork to issue a warning, the officer asked the driver about their relationship to one another and where they were headed, to which the driver responded. After escorting the driver back to his car, the officer questioned the other passenger about their relationship to one another and where they were headed. The driver of the vehicle and the passenger of the vehicle gave different answers. The passenger then admitted to there being a small amount of marijuana in the dispensary bag. The officer issued the warning.

The officer then asked the driver about the bag, and the driver stated that there was no marijuana in the car. Neither passenger presented a medical marijuana card. The officer detained both passengers and found various drugs and instruments in the vehicle.

At trial, the court denied the defendant’s motion to suppress based on the officer’s reasonable suspicion for the stop.

The Appellate Decision

On appeal, the court affirmed the lower court’s decision to deny the defendant’s motion to suppress. The appellate court explained that under the automobile exception, a vehicle can be searched without a warrant if there is probable cause or reasonable suspicion to believe that a crime has been committed. The smell of marijuana may give an officer probable cause to search in some cases, but generally only when combined with other factors.

Here, the officer’s initial stop was justified because he had reasonable suspicion that the driver of the vehicle could have been impaired or asleep due to the vehicle driving over highway fog lines. Also, the officer had probable cause to search the vehicle after smelling marijuana and smelling a strong scent of air fresheners, suggesting that the passengers attempted to conceal drugs. Additionally, the passengers gave conflicting information about their relationship and where they were headed. Thus, the court determined that there was probable cause to search the vehicle under the automobile exception.

Have You Been Arrested for an Arizona Marijuana Offense?

If you were recently arrested for a marijuana offense in Arizona, including possession, selling, cultivating, or driving under the influence, contact the Law Office of James E. Novak. Attorney Novak has extensive experience as a criminal defense lawyer handling all types of serious drug crimes. Attorney Novak provides clients with zealous advocacy. Call the Law Office of James E. Novak at (480) 413-1499 to schedule a free consultation to discuss your criminal defense.

Last year Maricopa County Superior Court reported that of 99.8 percent of terminated criminal cases, only 2.2 percent went to trial.

The United States Sentencing Commission (USSC) reported similar statistics in 2016. The USSC reported 97.3 percent of criminal cases were resolved without trial, while only 2.7 percent went to trial.

A majority of defendants opt for plea deals or deferred prosecution when made available to them, to avoid the uncertainties of trial verdicts, and harsh sentencing.

Prosecutors are encouraged to pursue plea agreements in criminal cases, and offer diversion programs when possible, to reduce court caseloads and to preserve the resources needed to conduct trials.

Defendants must also consider whether or not their statements made for purposes of plea negotiations or deferred sentencing, may be used against them if the charges are later prosecuted.

Recently, the Arizona Supreme Court reviewed a case in which the defendant opted to participate in deferred prosecution, but did not complete it. The Court considered the question of whether statements made by a defendant in connection with his deferred prosecution agreement were admissible.

Arizona Supreme Court Opinion

The case arose when a security guard found the defendant with marijuana in a restroom. The defendant was charged with a class 6 felony for possession or use of marijuana and participated in plea discussions.

The defendant rejected a plea agreement during a comprehensive pretrial conference. Shortly thereafter, his charge was reduced to a class 1 misdemeanor.

The defendant was extended an offer to participation in a drug treatment program, for which he agreed in exchange for deferred prosecution.

After accepting the deferred prosecution agreement, the defendant met with a representative of the diversion program to register. During the meeting which he attended with his attorney, the defendant completed a form that stated he understood his Miranda rights.

On the program’s statement of facts form, the defendant signed an agreement indicating that he understood that his statements could be used against him if he failed to complete the diversion program.

He admitted on the form that the marijuana was found in his possession on the floor.

A few months later, the State resumed the prosecution because the defendant didn’t attend seminars as required. He had also tested positive for marijuana and alcohol, in violation of the program terms.

The defense moved to suppress statements he’d given on the program registration form arguing that since the statements were made as part of plea discussions, they should be protected by Rule 410. The trial court denied the motion.

The defendant was found guilty after a bench trial. He was sentenced to a year of probation with a suspended sentenced.

He appealed the conviction. The court rejected the argument on appeal that his statements were inadmissible. The appeals court held that the defendant did not make admissions to a prosecutor during plea discussions and he had waived protection of Rule 410.

The appellate court held that Rule 410 didn’t apply because (1) discussions about deferred prosecutions weren’t plea discussions; and (2) those statements were given after he had rejected a plea offer.

The Court noted that the defendant had gone to the settlement conference where he’d gotten deferred prosecution with his father, his attorney, a prosecutor, and court commissioner present. No other options besides deferred prosecution were brought up at the hearing.

The defendant’s father had been corrected by the commissioner and prosecutor when he mistakenly said the son would have to plead guilty to participate in the program. The court explained that in deferred prosecution, a guilty plea is not entered. The defendant talked to his father before completing the registration paperwork, which included the form in which he admitted he possessed marijuana.

The Court took note that at no point was the defendant offered a plea deal. It explained that in a plea discussion the prosecution negotiates with the defendant about pleading guilty or no contest in exchange for a concession. In contrast, in a deferred prosecution discussion, they negotiate about whether the defendant will join a special program that results in a deferment or diversion before the guilty plea or a trial. When a defendant completes this program, his charges will be dismissed entirely. In contrast, a guilty plea never results in a dismissal since the defendant formally admits he committed a crime.

The Court held that Rule 410 and Arizona Rule of Criminal Procedure 17.4(f) didn’t apply to discussions about deferred prosecutions. It clarified that the appellate court was incorrect in holding Rule 410 didn’t apply only because he’d rejected a plea deal.

The Court also stated that the representative of the diversion program wasn’t an agent of the prosecutor for purposes of negotiating a plea. The defendant argued the representative was a state agent because the county attorney’s office name appeared on the forms. The Court rejected the idea that this made the diversion program representative a prosecutor’s agent for purposes of plea discussions, noting again he didn’t negotiate a plea.

Finally, the defendant argued his waiver agreement didn’t specify Rule 410. The Court explained a knowing waiver of Rule 410 only required that the defendant know the nature of the rights being abandoned and the consequences. He was specifically told by the prosecutor that if he failed the diversion program, the paperwork for the program could be used against him for trial. He was also told he could go to trial instead of making an admission. The drug conviction was affirmed.

3 Things You Should Know About Deferred Prosecution, Plea Deals & Legal Representation

Below is an overview of their framework, and the importance legal representation in these agreements:

I. Deferred Prosecution – 1) You do not plead guilty. Instead, you agree to participate in a special program when and if, made available to you by the court as an alternative to prosecution of particular types of criminal charges. 2) After successful completion of the program your charges will be dismissed. If you fail to complete the program the state will continue to prosecute the charges. 3) Any statements made in pre-trial discussions or written statements prerequisite to the program can be used against you.

II. Plea Agreement – 1) You must plead guilty.In a plea arrangement you are required to enter a guilty plea in exchange for a leniency in sentencing. 2) After an agreement is reached, the presiding judge will either approve or reject the plea agreement at their discretion. If the parties cannot reach an agreement the case will go to trial. 3) Statements that might otherwise be incriminating that were made to further plea discussions cannot be used against you, if you later decide not to accept the plea agreement.

III. Legal Advocacy – 1) Whether your matter involves a plea agreement or deferred prosecution, you should obtain legal representation as soon as possible. 2) In the least you should consult an attorney before your first court appearance which is usually the arraignment. If the prosecution extends an offer and you do not have an attorney, they often are unwilling to offer more favorable terms if you decide later to hire one. 3) Deferred prosecution is an offer made by the prosecution. However, defendants are sometimes surprised to learn that they do not qualify for the program, or that the court does not offer deferred prosecution for their charges. An experienced criminal defense attorney can help you to explore your options, make sure your rights are protected, and work to help qualify you for the program if it is available. If a plea agreement is involved, your criminal defense attorney will make sure that the plea terms are fair, constitutional, and the most favorable that can be obtained based on the circumstances of your charges.

Criminal Defense Attorney for Deferred Prosecution, Plea Agreement and Trial Mesa AZ

Possession of marijuana outside of the provisions of the Arizona Medical Marijuana Act is still illegal in this state. Those found guilty of marijuana possession, will be exposed to harsh felony sentencing.

The state imposes prison sentencing of ranges from 6 months to 1.5 years for possession of less than 2 pounds for personal use, felony records, fines, fees, assessments, participation in a substance abuse program, and any other penalties the court deems necessary.

For these reasons it is important to consult and retain an experienced criminal defense attorney to represent you in your charges. You will need an attorney with strong litigation and negotiation skills, and one who is familiar with the courts and rules of procedure in the jurisdiction where you were arrested.

James Novak, criminal defense attorney, is a former prosecutor in Maricopa County, with over 20 years of experience in handling criminal cases. He provides a free consultation for clients who face active charges in Mesa, Tempe, Phoenix, Chandler, Gilbert, and Scottsdale Arizona.

If retained, James Novak of the Law Office of James Novak will evaluate your case, the evidence, and all circumstances surrounding the incident. He will work with you closely to determine the best defense strategy and work to maximum your freedom and work vigorously to obtain the most favorable resolution for your charges.

Contact or call Attorney, James Novak at (480) 413-1499 for your free initial consultation. He will speak with you directly and in strict confidence to discuss your criminal matter, and defense options.

Additional Resources:

• TASC Solutions Mesa AZ
• Arizona TASC Program | Deferred Prosecution
• Fifth Amendment of the U.S. Constitution
• Sixth Amendment of the U.S. Constitution
• Miranda Rights | Miranda v. Arizona
• Arizona Criminal Sentencing Chart 2016/2017
• Arizona Rules of Criminal Procedure 410 (a) (4) | Plea Discussions
• Arizona Rules of Criminal Procedure 17.4 (a) | Plea Negotiations and Agreements
• Arizona Rules of Criminal Procedure 38.3 | Dismissal of Prosecution
• R.S. 13 – 4423 | Plea Discussions
• Statewide Superior Court Trial Statistics
• Arizona Court Annual Statistics
• A. R.S. 13 – 3405 | Arizona Marijuana Possession Laws
• A. R.S. 11 – 361 | Special Supervised Diversion Program
• Arizona Department of Corrections | Counseling and Treatment Services
• United States Sentencing Commission | Sentencing Statistics

Other Articles of Interest from our Award Winning Blog:

• How to Protect Your Rights under the Unconscious Clause
• Three Things You Need to Know about Your Miranda Rights
• Your Right to Request Change of Judge in Arizona Criminal Court
• What You Need to Know about the Medical Blood Draw Exception
• How to Protect Your Rights and Avoid Self-Incrimination

In a recent case decided by the Arizona Supreme Court, the defendant was charged with Marijuana transportation, and challenged the charges using Arizona’s Dress defense.

The defendant testified that smugglers armed with weapons, forced him to carry large bundles of Marijuana into the Arizona desert.

At trial, the jury found the defendant guilty of drug crimes and sentenced him to prison.

The Arizona Court of Appeals affirmed the conviction.

The defendant appealed his conviction to the Arizona Supreme Court on the basis that he was prohibited from advising the jury in opening statements that the duress defense would be used.

Below is an outline of the Arizona Supreme Court opinion and additional topics related to Arizona’s Duress Law:

• Arizona Supreme Court Opinion – Case Overview
• Understanding Arizona’s Duress Defense
• Q. & A. – Duress Defense
• Penalties, and Criminal Defense for Marijuana Charges

Case Overview

The case arose when two “coyote smugglers” led the defendant and two others from Mexico into the Arizona desert.

The defendant testified that during the trek, he was forced at gunpoint to carry bundles of Marijuana across the desert.

The group was spotted by Border Patrol and Sheriff’s deputies.

The officers found the defendant under a tree with multiple backpacks full of marijuana, but the others escaped.

The defendant was arrested and charged with transporting marijuana for sale, importing, and possessing drug paraphernalia.

The defendant told the court prior to trial that he planned to testify that his actions resulted from duress, and therefore he would challenge the charges using Arizona’s Duress defense.

Because the trial court judge believed he might change his mind about testifying, the defense was barred from mentioning duress or the defendant’s planned testimony.

Before the trial started, he asked the court to clarify its ruling and swore in an affidavit that coyote smugglers helped him cross the border.

The defendant claimed the smugglers took his possessions and threatened to hurt him if he didn’t transport the marijuana.

The trial court reiterated the ruling that until the testimony was actually established, the defense couldn’t argue duress.

The defense complied. The defendant testified just as he’d described in his affidavit, and his attorney argued duress during closing arguments.

The jury found him guilty of transporting marijuana and possessing paraphernalia, but acquitted him of importing marijuana. He was sentenced and appealed.

The Arizona Appeals Court affirmed the conviction.

The prosecution had argued that the defendant could have changed his mind at any time about testifying.

Therefore, the Appellate Court held that the trial court’s ruling was consistent with case law that an opening statement should include statements that can supported by proof.

The Arizona Supreme Court agreed to review the case.

The State conceded in its brief that it was error to prevent the defense attorney from mentioning the defense of duress in opening statements, but argued it was a harmless error.

The Arizona Supreme Court agreed that the trial court had made a mistake, because a defendant’s opening statement should advise the jury of facts that a defendant relies upon in his defense.

The Court explained further that the opening statement allows the jurors to get a total picture so that they can understand the evidence.

The Court reasoned that the defendant was supposed to be able to explain his plans to use Duress defense in the opening statement.

It is true that a criminal defendant has an absolute right not to testify.

But a mere possibility that the defendant might later choose not to testify, was not a good enough reason in the eyes of the Arizona Supreme Court.

The court reasoned that the mere possibility of the defendant choosing not to testify, should not bar a defendant from explaining this in the opening statement.

A trial court can require someone to identify the good faith basis for evidence that will be offered, but can’t be more exacting than that.

The Court noted that things don’t always go according to plan at trial, with witnesses sometimes not appearing. or changing their stories.

To account for that, trial courts instruct jurors that opening statements and arguments are not evidence, whereas testimony and exhibits are.

A defendant that doesn’t provide the appropriate evidence to support claims he made during his opening statement would only hurt his own credibility.

In this case, the affidavit was enough to show a good faith prediction about what evidence the defendant planned to present in his defense.

The Court explained that that restricting the opening statement didn’t deprive the defendant of the basic protections of due process in a criminal trial, or make a structural difference.

This is because he was allowed to testify, which mandated a harmless error review.

Accordingly, the Court sent the case back to the court of appeals to decide whether the lower court’s error relating to the opening statement was harmless beyond a reasonable doubt.

Understanding Arizona’s Duress Defense

Under Arizona Law A.R.S. § 13 – 412, Duress is classified as a Justification Defense.

A Justification Defense such as Duress is used to excuse a person for criminal liability under unique and specific circumstances.

It exists when a reasonable person’s conduct would otherwise be considered a criminal act, but is determined to be justified because the person acted under the threat of immediate physical harm.

For this defense to be available, the person being charged must reasonably believe that they were unable to refuse engaging in the criminal act.

Duress cannot be used a person acted intentionally or recklessly, or knowingly; or if the act carried out, results in homicide or serious physical injury to another person.

When it is used, the prosecution must prove beyond a reasonable doubt that the accused actions were not justified based on the facts presented at trial.

Arizona’s Duress Defense: Questions and Answers

Q. If a person committed a crime as a result of being under duress, will the judge or prosecution make sure the defendant uses the Duress defense?

A. No. Neither the judge or prosecutor has an obligation to introduce facts or evidence in favor of the suspect. If the suspect has a viable defense, the jury will not hear about it, from them. The most effective way to challenge the charges utilizing this defense is for the defendant to retain a skilled and experienced criminal defense attorney to do this on their behalf.

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Q. When can a person use the Duress Defense?

A. Under A.R.S. § 13-412 a defendant may raise the Duress Defense, if they were forced to engage in a criminal offense, under the threat of immediate physical injury or harm by another.

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Q. Under what circumstances is a person barred from using the Duress Defense?

A. Under A.R.S. § 13-412 A person is barred from claiming Duress, if they recklessly or intentionally placed themselves in a situation where duress was likely to happen. Under A.R.S. § 13 Duress is also unavailable as a defense where a person was murdered or seriously injured due to their actions.

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Q. What is the standard for burden of proof when the Duress Defense is used?

A. According to Arizona’s Revised Criminal Jury Instructions, the state must prove that the defendant was not justified in committing the crime, beyond a reasonable doubt.

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Q. What happens if the prosecution is unable to prove beyond a reasonable doubt that the suspect’s actions were not justified?

A. According to Arizona’s Revised Criminal Jury Instructions, if the prosecution is unable to meet this burden of proof, the defendant must be acquitted.

Marijuana Possession & Transportation Criminal Defense Attorney in Phoenix AZ

In Arizona, knowingly possessing Marijuana for the purpose of importing or transporting it for sale, under Arizona Law A.R.S. § 13 – 3405 is a class 3 felony, for offenses involving possession of Marijuana with a weight under two pounds.

If convicted of a first offense Marijuana transportation resulting in a class 3 felony, the person will be exposed to a minimum of 2.5 years, to a maximum of 7 years in prison.

If convicted in a case where the Marijuana exceeds two pounds in weight, charges will be brought as a class 2 felony, which calls for 4 years to 10 years in prison.

These amounts may vary by 1-2 years less or more, depending on mitigating or aggravating circumstances surrounding the charges.

Other felony sentencing and penalties will apply including large fines, fees, and assessments.

Some other defenses that may apply to Marijuana transportation or importation charges besides Duress, might include but are not limited to the following:

• Fourth Amendment and other Constitutional Rights violations;
• No knowledge that the Marijuana was in your possession;
• You did not have knowledge that others in the group were in possession of Marijuana for transport or sale;
• No evidence that the Marijuana in your possession was for transfer or sale;
• Challenges to weight and quantity the defendant is accused of possessing or having direct control;
• You were not in possession of the Marijuana for sale or otherwise;
• Mistaken identify

Arizona is tough on repeat offenses, which result in longer prison terms and harsher sentencing.

This is why it is important to invoke your right to a private drug defense representation if you face Marijuana or any drug related charges.

An effective criminal defense attorney will review the facts and evidence surrounding charges to determine the best defense strategy available.

When deciding whether or not to charge a person or enterprise with illegal drug transportation for sale, law enforcement officers consider the quantity found in a person’s possession.

Generally, the higher the quantity, the more likely the Marijuana is being transported for sales or intent to sell.

If you are charged with importing or transporting marijuana, you will need an experienced and tough defense attorney. James Novak is a former prosecutor and an experienced trial lawyer who offers a free consultation for active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

If retained, Mr. Novak, will provide you with a strong defense for your charges. Depending on the circumstances, there may be defenses that will apply to your case that can lead to a favorable outcome.

Call (480) 413-1499 or contact James Novak, of the Law Office of James Novak, today to discuss your matter and options for defending your charges.

Additional Resources:

• A.R.S. § 13-3913 (Conditions Precedent to Issuance of Search Warrant)
• A.R.S. § 13-412 (Duress)
• A.R.S. § 13 – 3405 (Marijuana Possession, Sales, and Transportation)
• Arizona Drug Investigations
• Arizona Attorney General – Criminal Investigations
• Phoenix AZ Police Department
• Maricopa County Sheriff’s Department – FAQ
• One of the Most Important Reasons to Resolve Your Warrant

Other Articles of Interest from The Law Office of James Novak’s Award Winning Blog:

• Entrapment: The Most Important Requirement for your Defense Revealed
• Arizona Supreme Court Rules on Voluntariness of Drug Testing
• Reasonable Suspicion and Totality of the Circumstances Arizona

The Supreme Court ruled that Medical Marijuana card holders are not immune from prosecution under the state’s DUI law, which prohibits drivers from having in their blood marijuana or another chemical compound that causes impairment.

At the same time, the court also ruled cardholders, do in fact, have a limited affirmative defense under the AMMA. But it is a limited DUI Defense. The AMMA does not, and does not provide general immunity from prosecution.

If a qualified user is facing marijuana DUI charges, they can provide a evidence or testimony showing they didn’t have a high enough concentration of the active ingredient THC, in Marijuana, to cause driving impairment.

If they are successful in their challenge of impairment, they may avoid a conviction.

Overview

This article will cover the following topics:

• Arizona Supreme Court Ruling on Marijuana DUI;
• Impacts of Ruling on Arizona Drivers;
• Affirmative Defenses in Arizona;
• When the Safe Harbor defense for Medical Practitioner Prescribed Drugs applies;
• 5 types of evidence that can be used to provide a showing of non-impairment;
• How many puffs does it take to cause Driver Impairment?
• Criminal Defense for Marijuana DUI Charges Mesa AZ

Arizona Supreme Court Case Overview

“Petitioners made no effort to show that the marijuana was in an insufficient concentration to cause impairment.” – Arizona Supreme Court

The case involved two defendants, both charged with two counts of driving under the influence: a violation of A.R.S. § 28-1381(A)(1) and a violation of A.R.S. § 28-1381(A)(3).

The former, (A)(1), prohibits someone from driving while under the influence of any drug if he or she is impaired to the slightest degree.

The latter, (A) (2), prohibits driving while there is any of certain enumerated drugs or their metabolites in the person’s body. Both defendants had taken blood tests that showed they had marijuana and its metabolites in their bodies.

One of the defendants wanted to present evidence of her medical marijuana card in another state, but the municipal court denied her motion. The other held an Arizona medical marijuana card, but the municipal court granted the state’s motion to preclude this evidence from being introduced.

The State dismissed the (A)(1) charge, for driver impairment.

But the defendants were convicted of the (A)(3) charge which states that a person is in violation of a violation of the DUI law if they are driving with any drug found in their system which falls within the state’s drug definitions A.R.S. 13-3401 that includes “Cannabis”.

The defendants appealed to the Maricopa County Superior Court, which affirmed the convictions. They then appealed to the Arizona court of appeals, which ruled that there was no immunity for defendants holding marijuana cards when charged with (A)(3).

The defendants asked the Arizona Supreme Court to review the case.

The Court explained that with an (A)(3) charge, unlike an (A)(1) charge, the state isn’t required to prove actual impairment.

The defenses for these charges are also different. With an (A)(1) charge where a person is in violation of the law if they are driving impaired due to drugs or alcohol. With that, it is not a valid defense against impairment to challenge the violations on the ground that the user has a medical marijuana card.

With the (A)(3) charge involving driving under the influence of the state’s defined drugs, there is an Affirmative Defense available. This defense makes it lawful to drive under the influence of the state’s defined drugs, if they the drugs are prescribed by a licensed doctor.

The Court explained that the Arizona Medical Marijuana Act (AMMA) immunizes registered qualifying patients for their medical use of marijuana, but the immunity is limited.

AMMA’s § 36-2802 provides immunity to qualified patients who use marijuana to the extent that 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 Court also held that possessing a registry card can create a rebuttable presumption that a particular person is using marijuana as permitted by AMMA, as long as he or she isn’t in possession of more than the permitted amount. This means that the police, prosecution, and court will assume it is true, unless the facts are challenged and proven otherwise.

Generally a defendant may be convicted of an (A)(3) violation if the state is able to prove beyond a reasonable doubt that the driver had marijuana or an impairing metabolite in her body while driving a vehicle.

As a defense, the defendant may show by a preponderance of the evidence that use was authorized by AMMA, and that the amount of marijuana was not enough to cause impairment. Simply presenting a registry card is not enough to establish this defense.

The defendants argued that it was unfair to place the burden of proof on them because there is no threshold that is commonly accepted as →more

the point of impairment. But the court stated that the risk of uncertainty should fall on patients who should know when they can drive, rather than on the public.

The Court noted that the defendants did not attempt to show that the active ingredients in marijuana, found in their systems, were in an insufficient concentration to cause driving impairment.

Further the Court ruled that possession of registry cards is generally admissible evidence. However, any error in that regard was harmless in light of the positive THC blood test evidence, and the fact that no effort was made to challenge driving impairment .

The defendants’ convictions were affirmed.

Impact of Ruling on Arizona Drivers

[A.R.S. § 36-2802 (D) & A.R.S. §13-205]

The ruling will have the following impacts on qualified medical marijuana users driving in Arizona:

• If arrested, it may be necessary for the defendant to secure expert witness to testify on why they did not feel the defendant had enough THC in concentrations high enough to cause impairment. This can be problematic since that amount is variable, and there is no statutory or numeric identifier of that amount, which continues to be in controversy in the courts, and the industry.

• Arizona, unlike some other states who have passed Medical Marijuana laws, do not have a statutory amount allowable for users to have in their system while driving a vehicle. As a result, the risk of uncertainty shifts to the patient. It is up to the driver/patient to recognize if they are impaired or the active ingredient in Marijuana, THC concentration is high enough to result in driving impairment.

• According to the National Institute of Health the impairing effects of alcohol between individuals vary due to the marijuana THC concentrations, strains of marijuana, the user’s tolerance, smoking technique, driving strategies, and different absorptions levels. Due to the variances the impairing amount will vary by individual.

Affirmative Defenses in Arizona

[A.R.S. 13-205]

An affirmative defense is one in which a defendant admits to committing an act, but challenges charges based on the fact that elements of law exist to excuse them from criminal liability under their circumstances.

Generally, the prosecution has the burden of proving beyond a reasonable doubt that a person is guilty of a crime committed.

Proof “beyond a reasonable doubt is a higher standard that of “preponderance of the evidence” standard.

With that, Under A.R.S. 13-205, when an affirmative defense is use, the burden of proof shifts to the defendant to prove their innocence by a “preponderance of the evidence” standard.

An Affirmative defense differs from a Justification Defense. In Justification defense such as self-defense the burden of proof shifts to the prosecution to prove beyond a reasonable doubt that the defendant is guilty.

Defense for Medical Practitioner Prescribed Drugs Denied

[A.R.S. § 28-1381 (2) (D)]

In this case the defendants raised another Affirmative defense challenge, in what some refer to as the “Safe Harbor” Law for drivers under the influence of prescription drugs.

Under Arizona’s DUI law A.R.S. § 28-1381 (2) (D), drivers are allowed immunity from criminal liability if they are using a drug as prescribed by a licensed medical practitioner as defined by the State of Arizona.

The court rejected that argument, on the grounds that medical marijuana used by qualifying patients do so pursuant to “written certifications” under the AMMA; and that they are not considered to be “prescribed” as defined by the state laws.

Further, the Court ruled that this defense applies to drugs prescribed by a different class of licensed “medical providers” than those who may issue medical marijuana certifications. For example, the DUI law A.R.S. § 28-1381 defines “medical providers” as including licensed dentists, or medical doctors.

In contrast, the AMMA law 36-2801 “physician” is defined as including both licensed medical doctors and naturopathic and homeopathic physicians.

5 types of Evidence that can be used to Prove You were Not Driving Impaired

Here are at least 5 examples of evidence that may be admitted in defense that a person was not driving impaired:

• Qualified expert witness testimony;
• Eye witness testimony;
• Passengers in your vehicle at the time you were stopped by Police;
• Challenges to police officer observations;
• Constitutional Rights violations

The evidence used to challenge a charge of impairment will differ depending on the unique circumstances of the case.

How Many Puffs does it Take to Cause Driving Impairment?

The short answer is that it is not possible to label exactly how many inhaled puffs it takes for one person to reach driving impairment, without knowledge of the variables.

The explanation is that the answer contains many variables. For example, the marijuana strain, it’s concentration of THC, frequency and tolerance of the user, smoking pattern such as volume of THC upon each inhalation, length of time the user has been on Marijuana.

Much scientific and legal controversy surrounds this impairment issue. But one thing experts do agree upon agree is that it is also difficult to establish a relationship between a person’s THC blood or plasma concentration and the impairing effects of Marijuana.

And while a urinalysis is one of the most common ways THC is detected in the body, they still do not test the level of impairment in the driver.

As a result, some of the 23 states that have legalized Marijuana have implemented a per se limit which does not consider impairing effects. This means a person can be driving without impairment, and still be arrested and prosecuted for DUI if those limits are exceeded.

Arizona does not have a statutory Marijuana per se limit. Though a common limit in some states that have legalized it, have a 5-nanograms-per-milliliter limit.

Some long term users find this unfair considering some long term, frequent users have built tolerances far greater than that amount, and have no driving impairment at that THC concentration level.

According to The National Highway Traffic & Safety Administration (NHTSA) the potency of Marijuana is dependent on THC concentration and is usually expressed as a percentage of THC per dry weight of material.

Average THC concentration in marijuana is 1-5 percent. Though some forms of cannabis have concentrations of THC that range from 17 to 20 percent of THC.

The lower the percentage of THC, the more “hits” or “puffs” takes to reach a medicinal or desired effect.

The same would be true for how many puffs it takes to reach a level or impairment, or for example a 5 ng/ml threshold.

Though often argued to the contrary, some e studies suggest that a 5 ng/ml (nanograms per milliliter), THC level produces driving impairment equal to that of .05 percent alcohol Blood Alcohol Content Level (BAC).

Unlike alcohol, THC levels climb rapidly and spike after inhaling, then within an hour or two begin to fall.

So for some who take several puffs and then behind the wheel, they will be driving at 5 ng/ml THC level. But the level itself should not be a sole indicator of impairment.

The best assurance for safety is to refrain from driving under the influence of Marijuana re under the influence of Marijuana.

If that is not possible, it is important to be aware of how much THC is in your system. In light of this ruling, it is important to remain aware of its effects, limitations or impairments at certain levels. It is best to become cognizant of these variables while a user is in a safe environment such as their home.

If you are a new user, it is important to discuss impairment issues related to your dosage and any impairing impacts with your medical practitioner or health care provider.

If you are a driving in Arizona but are qualified to use medical marijuana in another state it is important to understand the laws in all states for which you will be driving.

Criminal Defense for Marijuana DUI Charges Mesa AZ

This ruling places a heavy and uncertain burden on medical marijuana users who are arrested and charged with driving under the influence. If you are charged, consult James E. Novak, a drug crimes defense attorney in Tempe, Arizona. Mr. Novak is a former prosecutor and experienced trial lawyer. If retained, he will provide you with a strong defense for your charges. We offer a free consultation for active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona. Call today (480) 413-1499.

Additional Resources:

• A.R.S. § 28-1381 (DUI law)
• A.R.S. 13-3401 (Drug Definitions)
• A.R.S.§ 36-2802 (American Medical Marijuana Act; limitations)
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• A.R.S. 13-205 Affirmative Defenses
• National Library of Medicine – National Institute of Health
• National Highway Traffic and Safety Association
• Drug War Facts

Other Articles from this Award Winning Blog:

• When Police can Take Your Blood Test without a Warrant
• Why Good Juries Reach Bad Verdicts
• Violations of “Search and Seizure” Laws: How they Impact Prosecution
• U.S. Supreme Court Rules No Warrant Needed To Collect DNA If Arrested,
• Yes, You Have Constitutional Rights At An Arizona Checkpoint
• New Technology enables Police to obtain a Search Warrant within Minutes

In late July, two different Appeals Courts in Arizona released contrasting opinions involving appeals to dismiss the Marijuana evidence due to lack of probable cause for the search.

In both cases the defendants argued the because of the Arizona Medical Marijuana Act (AMMA), the smell of Marijuana should not be used for determination of Probable cause.

In one case the conviction was reversed. In the other case the conviction was affirmed. Here we find out why they differed.

Arizona Appeals Court Ruling – Case #1 (No. 2 CA-CR 2014-0181)

On July 20, 2015, the Arizona Court of Appeals Division Two issued the first ruling.

The Court considered the effect that the Arizona Medical Marijuana Act (AMMA) had on probable cause to for issuance of search warrant, based on an odor of Marijuana.

In this case, the Appeals Court ruled that the scent of marijuana alone was insufficient evidence of criminal activity.

Therefore, it was not adequate to justify probable cause for search and seizure warrant.

The Appeals Court held that in order to satisfy the probable cause standard, the scent of the Marijuana would need to be combined with other evidence or facts, which were not presented in this case.

Case #1 Overview

The incident arose from a search warrant requested by police officers after they reported smelling a strong odor of marijuana from a multi-unit warehouse.

The judge issued the warrant, finding that the odor served as probable cause for search.

Prior to Arizona Medical Marijuana Act (AMMA) which passed in 2010, the courts recognized that the smell of marijuana indicated the probability of criminal activity, because Marijuana in any form was unlawful.

When the police arrived at the warehouse and entered, they found it empty.

So they requested a second warrant, to enter another building nearby based on the odor of Marijuana traced to that building.

The magistrate granted another warrant to search the second building.

In the second warehouse, they found dozens of marijuana plants and growing equipment.

They discovered that that young child and defendant both resided there.

The defendant was charged with child abuse, possession of marijuana for sale, production of marijuana, and possession of drug paraphernalia.

The defendant filed a motion to suppress the evidence on the grounds that the marijuana scent was not enough to establish probable cause of criminal activity.

The trial court denied the motion, finding that the AMMA didn’t affect probable cause determinations.

The defendant was convicted of the charge, and sentenced to concurrent prison terms, the longest of which imposed a 3.5 year term.

The defendant appealed his convictions arguing that the AMMA should change the probable cause analysis with respect to the smell of marijuana.

One effect of the AMMA was that Marijuana may be lawful in other places now, for example, where it’s cultivated.

As a result, it is in both possession as well as other places where Marijuana is considered lawful.

And other circumstances now exists besides “mere possession itself” where criminal conduct v. non-criminal activity must be determined.

Based on this rationale, the Court ruled that multiple circumstances should be considered along with the marijuana odor factor, in order to determine if police have sufficient probable cause for search.

In its decision, the appellate court explained that probable cause exists when a reasonably prudent person, based on the facts known to the police officer, would be justified in concluding that the items sought are related to criminal activity and will be found in a particular location.

The Court held that the odor of Marijuana does not necessarily mean that criminal activity has happened or will happen.

Lawful operations that take place under the AMMA such as medical marijuana dispensaries will cause the buildings in which they occur to smell.

Accordingly, the court found that the smell of marijuana is now insufficient by itself to provide probable cause for a search warrant for a building.

There must be some circumstantial evidence of criminal activity beyond the mere smell of marijuana in order to find probable cause.

The court expressly limited the holding since it was the odor of Marijuana from a building that raised suspicion that a crime was in process, and not actions of a suspect.

The Appeals Court did not address the issue of whether the smell itself constituted reasonable suspicion to conduct an investigative stop or detention.

The Justices noted that despite the protections under the AMMA, smoking Marijuana in or in an automobile can still suggest a crime has occurred as prohibited; as well as smoking Marijuana in public prohibited under A.R.S. 36-2802.

Therefore the smell of marijuana smoke in public places or from a vehicle may still give rise to probable cause and reasonable suspicion for investigation, depending on a reasonable assessment of the circumstances.

Arizona Appeals Court Ruling – Case #2 (No. 1 CA-CR 14-0072)

The second case opinion filed July 23, 2015, heard in Arizona Court of Appeals Division One, was an appeal for misdemeanor possession or use of marijuana.

During the proceeding in Maricopa County Superior Court, the defendant’s motion to dismiss a warrantless search of his vehicle was denied, resulting in the conviction.

Case #2 Overview

The Appeals Court found no error in denying the suppression of the evidence and affirmed the conviction.

This incident arose after police on routine patrol noticed a vehicle had window tinting darkness in violation of Arizona window tinting laws.

When they approached the vehicle they smelled a strong odor of Marijuana coming from inside of the vehicle.

The officer asked the defendant to step out of the vehicle. The defendant complied without incident.

The police officer then searched the vehicle, and noticed an empty prescription medication bottle in the center console. He opened it and smelled a strong odor of burnt marijuana.

Under the driver’s seat the officer then found what was described as a “marble size’ amount of unburnt marijuana.

Police arrested the suspect. Following the arrest, the suspect’s Miranda Rights were read.

At that point the suspect admitted that the pill bottle that contained the burnt marijuana belonged to him.

During the lower court proceedings the defendant argued that automobile exception to the search based on “plain smell of marijuana” doctrine no longer authorizes police to search vehicles, due to the enactment of Arizona Medical Marijuana Act (AMMA) A.R. S. 36-2801.

The Superior Court denied this argument citing the Plain Smell doctrine.

“Plain smell” standard adopted in State of Arizona v. Harrison, which holds that the AMMA does not eliminate the “Plain Smell” Doctrine.

The Court also rejected the argument by the defendant that under protections of the AMMA Police must presume that any odor of marijuana they smell is lawful, and no longer an incriminating characteristic to establish probable cause of a crime.

The Appeals Court recognized that under the AMMA laws of Arizona A.R.S 36- 2811 a registered and qualifying patient is not subject to arrest, prosecution, or penalties for use as long as are using in accordance with the provisions of the AMMA law.

The Justices also noted the impacts that the Medical Marijuana Law does not have:

• The AMMA does not immunize suspects from being subject to searches under the Plain Smell Doctrine.

• The AMMA does not disqualify the plain smell of marijuana to be used as sufficient evidence to establish probable cause for search in Arizona.

• The AMMA does decriminalize marijuana in the State.

• The AMMA does not reduce the significance of Marijuana as an indicator of criminal activity.

The Appeals court held that the defendant did not show how the AMMA would extend immunities to him in this case.

The Court reviewed the “Plain Smell” Doctrine adopted by Arizona, that includes a three prong test. The doctrine makes the warrantless searches legal under the doctrine when the following criteria is met:

• The officer is lawfully in a position to smell the evidence;
• Incriminating character of the evidence is immediately apparent; and
• The officer had lawful right of access to the evidence Arizona Baggett, 2013.

The Justices noted that there was no challenge to the fact that the officer was lawfully in a position to smell the marijuana, possessed lawful access at that time, or that the marijuana odor constituted sufficient probable cause that a crime was in progress or had been committed.

This information verifying that the three three-prong-test standards were met during lower court proceedings.

Thus, the Appeals court ruled that the Superior Court did not error, in denying the motion to suppress.

Therefore the decision of the lower court to deny the motion to suppress, and the convictions were affirmed.

Analysis and Discussion: Comparison of Two Contrasting Verdicts; and Marijuana Odor as Probable Cause

The two Appeals Courts did, in fact, have conflicting opinions in one primary challenge in both cases.

That was whether or not the AMMA effects or dismisses marijuana Smell to be used as a determinate for probable cause.

(1) In the first case, the Appeals Court ruled that the AMMA did impact the plain smell doctrine and whether or not it could be used to determine probable cause.

The first Appeals Court ruled in its case, that under the AMMA where Medical Marijuana is legal, there is potential to smell Marijuana in a number of places such where it is lawful such as where it is being cultivated, stored, or sold. This was not the case before AMMA enactment.

In the first case the source of smell was a warehouse, which narrowed the ruling to the context of the inside of a building.

Use of Marijuana in a vehicle, or in public is prohibited under AMMA and Arizona Law. Use of a Marijuana in a vehicle is still suggestive of criminal activity such as impaired driving.

These factors were paramount because to the Appeals Court decision to vacate the convictions.

(2) In the second case the Appeals Court rejected the idea that the AMMA impacted the “Plain Smell Doctrine” when determining probable cause for search; and that the Arizona Medical Marijuana Act does not immunize suspects from being subject to “Plain Smell” of Marijuana being sufficient for probable cause to search. It only provides protections from arrest prosecution and any penalties.

Further, the source of the Marijuana smell was a vehicle, reinforcing their decision affirm the convictions since use in a vehicle is prohibited under AMMA; Arizona Statute; and is still suggestive of criminal activity.

Marijuana smoke on a public road to still constitute reasonable suspicion or probable cause in the context of a vehicle search. There are still some points that may need clarification.

The fundamental circumstances in the two cases are different, meaning it is unlikely that any changes in police policy related to Marijuana odor evidence at this point.

If in the first case, the odor of the marijuana had originated from an automobile, or while the suspect was in public, then a conflict in verdicts would have existed in Arizona case law.

It seems only a matter of time before these or other cases involving Probable Cause for Search based on Plain Smell of Marijuana cases end up in the Arizona Supreme Court.

Arizona and all other states progressing in Marijuana passage in some form, can expect repetitive ad continuing disputes that impact them at a state-wide level.

The state will continue to progress in setting forth laws or precedent guidelines that address the impacts the AMMA will have on reasonable suspicion or probable cause determinations in the future.

Considering the fact that the Federal laws still prohibit Marijuana under the Federal Controlled Substances Act, it is unlikely that they would agree to hear State Court disputes involving Marijuana.

So for now and unless the cases are heard in the Arizona Supreme Court, the Appeals Court decisions will be looked to as precedent cases. And each case will need to be reviewed on a case by case basis.

Criminal Defense for Marijuana Crimes in Mesa AZ

Marijuana and other Drug crimes in Arizona are very serious. Even if a person is a qualified Medical Marijuana user, they may also be exposed to criminal charges if they are accused of violating the AMMA laws.

If you face Marijuana or any of drug charges it is crucial that you consult a criminal defense attorney to discuss your defense options and retain them for your charges. There may be defenses that can be used to challenge the charges.

In the cases above challenges were raised in the following areas:

1) Constitutional – Fourth Amendment Rights Violations for unlawful search and seizure;

2) Evidentiary – Motions to dismiss evidence based on no probable cause for search; and

3) Statutory Challenges – Effect of AMMA on “Plain Smell” of Marijuana Doctrine to determine probable cause.

To protect your rights, and avoid self-incrimination, you should not make any statements to police regarding the charges until you speak with an experienced criminal defense attorney.

James E. Novak, Drug Crimes Defense Attorney, is a former prosecutor, experience trial lawyer, and dedicated drug defense attorney. If retained he will provide you with a strong defense for your charges.

James Novak, of The Law Office of James provides a free consultation for active criminal charges and serves Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale Arizona. Call today for a confidential and free consultation at (480) 413-1499.

Additional Resources

• A.R.S. § 36-2801 (Arizona Medical Marijuana Act)
• Arizona 13-3925
• Requirements and Exceptions to Lawful Search Warrants in Arizona

Other Articles of Interest

• Violations of “Search and Seizure” Laws: How they Impact Prosecution, July 23, 2013
• U.S. Supreme Court Rules No Warrant Needed To Collect DNA If Arrested, June 9, 2013
• Yes, You Have Constitutional Rights At An Arizona Checkpoint, July 5, 2014more

Cultivation or manufacture of marijuana for non-medicinal purposes (or growing outside the strict guidelines provided in connection with medical marijuana cards) remains a felony in Arizona. Those arrested and prosecuted for felony marijuana manufacturing can face serious punishments at sentencing.

There have been several significant arrests in Phoenix and Tucson for cultivation of marijuana recently. In mid-May, Tucson police found a house where 356 marijuana plants in various stages of growth were growing. They also found $18,000 in cash. On June 3, 2013 a canine unit from the Arizona Department of Public Safety found a driver carrying 7 pounds of marijuana. After arresting him, the Arizona Department of Public Safety searched his house in Phoenix and found 100 marijuana plants as well as handguns and growing equipment.

Marijuana cultivation for non-medicinal purposes is not only illegal, but can also be physically dangerous. On June 6, 2013, a marijuana grow house with about 1 dozen marijuana plants caught fire. The firefighters observed lighting, heaters, and Styrofoam insulation. Equipment used to grow marijuana can require an enormous amount of electricity.

As a result of the equipment used to grow large quantities of marijuana, circuits can get overloaded and wires get overheated, resulting in a fire. An entirely sealed room may require a dehumidifier, which also consumes electricity. Failure to control humidity can lead to mold or rotted wood. If propane powered generators are used, there is also the chance of explosion. Depending upon the circumstances, causing a fire and the ensuing property damage or injury to a person can lead to additional civil or criminal penalties beyond those levied for marijuana manufacturing.

Marijuana cultivation for non-medicinal purposes carries different punishments based on the dried weight of the marijuana. In addition to jail or prison time, those convicted of marijuana cultivation must also pay $750 in fines. If convicted of cultivating an amount less than 2 pounds, sentencing may be for a Class Five felony. As a first offense, marijuana manufacturing can be punished with prison for between 6-2.5 years in custody. A judge may offer a first time offender probation instead. If the defendant has one or more prior felony convictions, incarceration times increase even for this small amount.

If convicted of cultivating a quantity of marijuana with a dry weight of 2-4 pounds, the cultivation is a Class 4 felony that carries a mandatory prison sentence of 1 to 3.75 years of incarceration. With one prior felony conviction, the mandatory prison range is 2.25-7.5 years prison. The amount of mandatory prison time increases the more prior felony convictions a defendant has.

Marijuana cultivated in an amount that exceeds 4 pounds dried is a Class 3 felony with a mandatory prison sentence of 2-8.75 years in prison. This amount can increase up to 25 years of incarceration with two prior felony convictions.

Other penalties may apply in a situation involving a marijuana grow room or outside crop. A defendant may be charged not only with manufacture or cultivation, but also possession, sales, or trafficking depending upon the circumstances. As mentioned above, there may be property damage or other problems associated with a grow room.

There are several defenses to a charge of cultivating marijuana that an experienced criminal defense attorney may be able to raise. A number of these have a constitutional basis and involve the police following flawed procedures. For example, if the police coerced you into making a confession or failed to read you your “Miranda rights,” the evidence obtained this way is not admissible at trial. Similarly, where search warrants were not obtained or obtained improperly, they may violate Fourth Amendment rights.

Under certain circumstances, people are arrested and charged who were not aware of marijuana cultivation. This may happen, for example, on a rental property if marijuana is growing outside in a small part of a garden.

If you are arrested for manufacturing marijuana or for another marijuana-related offense, you should retain an attorney knowledgeable about these types of cases to defend and protect your rights. Contact The Law Office of James Novak at 480-413-1499 for a free consultation.

Additional Resources:

• Arizona Drug DUI Laws
• Arizona Drugs Defined Under Criminal Code
• Mesa AZ Police Department

More Blogs

• Arizona’s Medical Marijuana Law Stands Ground, Phoenix DUI Lawyer Blog, June 4, 2013
• Marijuana DUI: The Impact of Montgomery v. Harris, Phoenix DUI Lawyer Blog, March 13, 2013

Almost three years after passage, Medical marijuana remains controversial in Arizona. Medical Marijuana was legalized in 2010 through voter passage of the Arizona Medical Marijuana Act (AMMA). The purpose of the AMMA is to protect patients with debilitating medical conditions, so that they can obtain necessary relief.

AMMA allows patients to get a registration identification card to show law enforcement officers that they are permitted to use marijuana for medicinal purposes. Visitors from another state that recognizes medical marijuana, like California, with equivalent cards are also protected.

Notwithstanding these state protections, some law enforcement officers refuse to recognize the card. Federal law, which trumps state law, does not recognize or permit a medicinal use for marijuana. An appellate case heard earlier this year further legitimized medical marijuana cards, but the facts of the case illustrate that it there are still risks from a legal perspective to be a medical marijuana user in Arizona. In the case, a California driver (the defendant) was stopped when she entered Arizona. The authorities found and seized marijuana and other contraband. The State filed drug charges against the driver, dismissing them only after she produced proof of permission to use marijuana for medical purposes. The Superior Court ordered that the driver’s marijuana be returned.

The State appealed. It argued that the superior court could not order the sheriff to return the marijuana and that Arizona law not only requires “summary forfeiture” of any marijuana seized by law enforcement, but the sheriff could not return the driver’s marijuana or risk violating federal law and getting prosecuted.

The appellate court reasoned that law enforcement officers did not seize the marijuana in connection with a drug offense, since the driver was permitted to possess marijuana for medical purposes. Nor could the State win on the grounds that it could keep marijuana that came into its possession. This was because to do that would require either bringing civil forfeiture proceedings, or to be holding drugs possessed in a crime. Since AMMA decriminalized medical marijuana, the latter situation did not exist.

The State also argues that the AMMA did not expressly require them to return marijuana from a qualifying patient. The appellate court disagreed. It noted that no penalty could be placed on a qualified patient under the statute.

The State had also argued that the sheriff could be prosecuted for transferring marijuana under federal law. This, too, the appellate court repudiated. Federal law “immunizes” law enforcement officials who follow a court order.

The State’s final argument was that the superior court could not order that the driver’s marijuana be returned to her because her possession was a federal crime. The appellate court declined to decide whether federal law preempted AMMA for purposes of adjudicating this case. There was no actual or threatened prosecution of the driver under federal law, and the State was not a party with a personal stake who had standing to argue that federal law prevented the driver from possessing the marijuana. Accordingly, the appellate court affirmed the ruling of the superior court.

It’s clear that this will not be the last time a defendant will have to deal with a situation in which state law enforcement attempt to ignore AMMA. Officers may continue to arrest drivers, requiring them to come to court to fight the charges brought against them.

Additional Resources:

• Arizona Drug DUI Laws

• Arizona Court of Appeals Division 1

• Arizona Drugs Defined Under Criminal Code

Medical marijuana may be further complicated when officers arrest drivers who test positive for marijuana use on the grounds that they are driving under the influence of drugs. For help defending your Phoenix AZ DUI or drug charges, contact the experienced Arizona criminal defense attorneys of the Law Offices of James Novak at 480-413-1499.

More Blogs

Arizona Court Rules Against Imposition of Non-concurrent Sentences, Phoenix DUI Lawyer Blog, May 17, 2013 Prescription Drug DUI Charges, Phoenix DUI Lawyer Blog, January 28, 2013

• Arizona Medical Marijuana laws are preempted by the federal Controlled Substances Act (“CSA”);
• Imminent threats of seizures and closures of dispensaries in Arizona by the U.S. Attorney exist;
• State employees involved or who participate in conduct that is in violation of Federal offenses is compelling enough to take immediate action to halt of ADHS licensing.

Despite the fact that Governor Brewer did not support the passage of the Arizona Medical Marijuana Act (AMMA), she feels strongly she has a duty to support its’ existence which was voted into law by the people of Arizona. She stands on firm ground with her decision, and will move forward with implementation until and unless she is notified by the higher Court that State employees will be prosecuted by administration of the law within their duties.

Arizona Laws

As it stands now Medical Marijuana laws allow for, among other things the following provisions:

• No limit exists as to the amount an approved and licensed dispensary may grow;
• Qualified Patients with valid Medical Marijuana cards may purchase 2.5 ounces every two week.

Arizona Drug DUI and Marijuana DUI Laws

All medical marijuana users should understand that although they are qualified users, with valid cards, that do not prevent them from being arrested for Drug DUI. Under A.R.S § 13-3401, any person “driving impaired to the slightest degree” due to the influence of alcohol, drugs, or Marijuana, they may still be charged with a DUI. The other fact to keep in mind is that Marijuana stays in the blood stream much longer than alcohol. So even in small amounts, it may show positive on DUI blood or chemical testing days or even weeks after it was smoked or ingested.

Consequences of DUI with Drugs or Marijuana DUI

If you are arrested in Arizona for a Drug DUI, or Marijuana DUI you should consult a criminal defense attorney to discuss your matter and defense options. Penalties for Marijuana DUI Convictions are as severe as those for Alcohol related DUI charges. They carry mandatory jail sentencing; suspension of driver’s license; probation; alcohol/drug education, counseling and screening; fines, fees, and assessment costs. You should retain proper legal representation for your charges. They will make sure your rights are protected; that you are treated fairly; and work to get the best resolution in your case. Favorable outcomes may include dismissal of charges, reduction of sentencing; avoidance of jail or other harsh penalties.

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Law Office of James Novak 4500 S. Lakeshore Drive Tempe AZ 85282 (480) 413-1499 www.Arizonacriminaldefenselawyer.com www.novakazlaw.com Arizona Department Health Services

Letter requesting AMMA Halt:

Answer from AZ Governor Brewer

Arizona Marijuana DUI Laws Arizona Law prohibits use of driving a vehicle while “impaired to the slightest degree”, due to any drug, alcohol, vapor releasing, intoxicating, or toxic substance in the body. Arizona DUI laws are strict.

Even if you are a certified card holder for Arizona medical Marijuana use, or you have taken any other drug legally prescribed by a licensed physician, or an over-the-counter drug at your local drug store, A.R.S. 28-1381 3.B. will apply. Below are portions of the Arizona DUI drug laws: Arizona Revised Statutes “A.R.S. 28-1381. Driving or actual physical control while under the influence; trial by jury; presumptions; admissible evidence; sentencing; classification A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree….

3. While there is any drug defined in section 13-3401 or its metabolite in the person’s body…

B. It is not a defense to a charge of a violation of subsection A, paragraph 1 of this section that the person is or has been entitled to use the drug under the laws of this state.

C. A person who is convicted of a violation of this section is guilty of a class 1 misdemeanor….” (Cited in Part: Arizona State Website azleg.state.az.us/)

Arizona DUI with Marijuana Testing | DUI Marijuana evidence The most common way Arizona police test for DUI with Marijuana is through blood testing and Urine testing. Both are controversial with regard to the test results and may be argued by your marijuana DUI defense lawyer as to whether or not they are admissible or should be suppressed as improper evidence depending on many circumstances. The prosecution will usually insist without justifiable circumstances that the blood or urine testing is accurate and admissible as evidence to use against you. A good Arizona defense Attorney will examine the evidence to determine if a compelling argument can be made to suppress it and file the proper motions.

Arizona Marijuana DUI Penalties Arizona has some of the toughest laws in the country for Drug DUI and any DUI. Below are jail or prison guidelines for DUI convictions. Note this chart does not include other penalties, fines, fees or punishments that apply for Phoenix DUI convictions. References are from A.R.S. 28 – 1381, 28-1382, and 28-1383:

• First DUI (non-extreme) .08+ BAC……………… 24 Hours in Jail • Second DUI (non-extreme) .08+ BAC……………..30 Days in Jail • First DUI Extreme .15+ BAC ……………………. .30 Days in Jail • Second DUI Extreme .15+ BAC……………………. 120 Days in Jail • First DUI Super Extreme .20+ BAC……………….. 45 Days in Jail • 2nd Super Extreme .20+ BAC……………………..180 Days in jail • Felony DUI (with aggravated classification)……4 Months in Prison . Arizona Marijuana DUI Defense Attorney The criminal justice system in Arizona is a maze of procedures, protocol, turbulent legislation, and is not empathetic to persons charged with DUI, or DUI with drugs of any kind. The job of the Arizona prosecution is to convict you. They are not there to help you or to examine defense strategies to help you defend yourself. The judge can not do anything to help you unless proper motions and compelling arguments in your defense are presented through the proper legal channels. You will need a strong criminal defense attorney, Arizona DUI lawyer or criminal defense attorney in Arizona. There is too much for you at stake to go unrepresented by a proper Arizona DUI lawyer. They will be the your ally you need to protect your rights, make sure you are treated fairly, defend you, and do everything possible, to try to get your charges dismissed, reduced or the otherwise best outcome in your case.

more For more Arizona criminal defense help, DUI defense help, free DUI defense books, and free DUI and criminal defense videos and many other DUI Defenses that can be used to get your case dismissed, charges reduced, or evidence suppressed visit WWW.arizonacriminaldefenselawyer.com. There you can download three free “Arizona Winning DUI Defense Strategies” © books written by winning defense Attorney James Novak, which includes “101 AZ DUI Defenses” ©.

If you have been arrested for any Tempe DUI other criminal charge, contact the Law Office of James Novak, for your Free Consultation at (480) 413-1499. Speak directly with experienced Arizona criminal Defense and DUI Defense Attorney and James Novak (Former Prosecutor).

The Law Office of James Novak is devoted to defending DUI, Drug & criminal charges in Tempe Arizona and valley wide within Maricopa County. This post was intended to provide general information only and is not intended as specific legal advice. You should not rely upon this information alone, but should consult legal counsel regarding the application of the laws and regulations discussed and as applied to your specific case or circumstances.