Recently, an Arizona appellate court considered an important case where the Justices reviewed what it takes to prove this affirmative defense.

This article sheds light on some important related criminal law and defense topics:

• 3 ways a person facing Medical Marijuana DUI charges may establish an affirmative defense;
• The burden of proof for an Affirmative Defense;
• 10 other common challenges for Marijuana DUI charges;
• How a criminal attorney can defend your Marijuana DUI charges

Overview of Arizona Court of Appeals Opinion

The incident began after the defendant was stopped by police for allowing his vehicle to drift slightly into the next lane.

When an officer approached the car, he smelled marijuana.

The defendant told the officer he’d been speaking to someone else in the car and moved the car back into place after he realized it drifted across the line.

The officer saw that the defendant’s eyes were watery and bloodshot. He asked the defendant when he’d last smoked marijuana.

The defendant told the officer he had smoked marijuana that morning just after he woke up.

During one of the DUI field sobriety tests, the officer reported that defendant had body and eye tremors.

The suspect was charged with driving under the influence of marijuana or its metabolite under A.R.S. § 28-1381(A)(3), and impaired driving to the slightest degree under A.R.S. § 28-1381(A)(1).

Before the trial began, the prosecution tried to keep out evidence that the defendant had a medical marijuana card.

The defendant argued that it was unfair for the jury to think it was illegal for him to smoke marijuana.

Before the Arizona Supreme Court ruled on another important medical marijuana card case (Dobson), the State’s motion to exclude the evidence was granted on the ground that the medical marijuana card was irrelevant.

At trial, the prosecution hired an expert who testified the defendant had 26.9 ng/ml of THC in his blood.

The defendant also retained an expert witness for his defense.

The defense expert testified that there was no agreement about the concentration of THC that would impair a person.

That expert also testified that what the defendant had in his body was a quantity that would impair some people, but might not impair everyone.

The jury acquitted the defendant of impaired driving under Arizona’s DUI law 28-1381(A)(1).

However, the jury convicted him of driving with marijuana or its metabolite in his body under § 28-1381(A)(3). The judge sentenced him to 180 days of incarceration, with half the term suspended.

The defendant appealed his conviction for driving under the influence of marijuana, to the superior court. The superior court reasoned that even if it was a mistake for the municipal court to prevent the defendant from mentioning his medical marijuana card, the defendant hadn’t shown he could get an expert who would testify he wasn’t impaired at 26.9 ng/ml. The defendant petitioned by special action to the appellate court. The appeals court looked at the recent Arizona Supreme Court decision in Dobson, which explained that the immunity provided by AMMA was not absolute. In Dobson, it was not enough for a qualified user to simply present their medical marijuana card to establish an affirmative defense.

The court noted that under A.R.S. § 36-2802(D) (2016), a medical marijuana cardholder could be prosecuted in some circumstances, but not solely for driving with the presence of marijuana or its metabolite in their body.

The court explained that a qualified patient could establish an affirmative defense by proving by a preponderance of the evidence that (1) he was using medical marijuana as authorized by AMMA, and (2) the metabolite was in a concentration that was not enough to impair him while driving.

The appellate court found that the municipal court had made a mistake in preventing the defendant from submitting evidence to support this affirmative defense.

The appellate court explained that when a defendant raises the affirmative defense, the question is whether the cardholder was impaired, rather than whether the amount of THC in his blood is enough to impair anyone else.

Additionally, the court explained that nothing in the statute required the defendant to present expert testimony on whether he was impaired because of THC.

The defendant simply had to establish that the metabolite in his body was not enough to impair him at the time he was in control of the car, by offering any admissible evidence. Accordingly, the conviction was vacated.

3 Ways to Establish an Affirmative Defense for Medical Marijuana DUI

While the Arizona Appeals Court did not address all types of evidence that can be used by a qualified patient to establish an affirmative defense, it provided some much-needed clarity.

The three ways that were discussed in this case in which a cardholder may establish an Affirmative defense include:

• Cross examination of the prosecution’s expert witness, or the officer who made the arrest.
• Offering the opinion of an expert witness hired in your defense.
• The defendant’s own testimony, or the testimony of lay persons who may have witnessed and observed the driver’s behavior with regard to the impairment issue.

In addition, it is helpful for defendants to know that courts will be looking at whether an individual defendant with metabolites in his blood was impaired, rather than whether the public in general may experience impairment while they have a particular amount of THC in their system.

The Burden of Proof for an Affirmative Defense

Under Arizona law A.R.S. 13-103 (B) an affirmative defense is one that offers a way for a defendant to be excused from criminal liability of an otherwise unlawful act.

In absence of an affirmative defense situation, the prosecution has the burden of proving beyond a reasonable doubt that a person committed a crime, and the defendant is presumed innocent from the start.

In an affirmative defense, the prosecution needs to prove the elements of the crime were committed beyond a reasonable doubt. But the defendant must also prove an affirmative defense applies by the preponderance of the evidence, a lesser standard than reasonable doubt.

10 Other Defenses for Marijuana DUI Charges

The DUI defenses that may be used to challenge your charges will vary based on the unique set of circumstances surrounding your matter.

Below are 10 examples of common defenses that are often used to challenge and defend Marijuana DUI charges:

1. The chemical found in your bloodstream was a non-impairing ingredient or metabolite in Marijuana such as Carboxy-Tetrahydrocannabinol (THC). This substance is an inactive metabolite that can remain in a person’s body up to several weeks after using marijuana.
2. Independent lab testing results were inconsistent with police lab results. You have the right to request a sample of the DUI evidence for the purposes of your defense. If the results are materially different, it weakens the validity of the police results. If the court agrees, the evidence can be suppressed or not used against you.
3. The DUI testing sample was mishandled, mislabeled, contaminated, or the subject of other protocol violations. Strict procedures are in place for the administration, processing, handling, storage and transport of chemical tests. If they are compromised, it may reduce the validity of the results of the sample.
4. You did not give a voluntary consent for the DUI chemical test. The Arizona Courts have determined that in order for a consent to be given voluntarily, they must be given freely, and in absence of coercion. Further if a person refuses medical treatment than the drawing of blood for DUI purposes as part of subsequent medical treatment, then the blood draw is considered to be involuntary as well.
5. Challenges to validity of the field sobriety tests and their results. Roadside testing has long been the subject of court challenges. One reason for this is their high inaccuracy rate. Another reason is that the results are often perceived as being biased, since the police administer and grade the test unilaterally. Numerous other challenges exist including but not limited to the the fact that the driver was not a good candidate for testing as recognized by the National Highway Traffic and Safety Administration due to existing medical conditions.
6. The officer did not have reasonable suspicion to pull you over. Police must have reasonable suspicion that a violation of the law is in progress or has occurred in order to stop you for a DUI investigation, or the stop is unlawful.
7. The officer did not have probable cause to arrest you. Probable cause is a higher standard than reasonable suspicion. Under the 4th Amendment, the police must have reasonable grounds to arrest you. This means the police need evidence and not just a hunch that you were driving impaired.
8. The driver was not in actual physical control of the vehicle. There are a number of factors that need to be considered when determining if a person was in actual physical control of a vehicle. These circumstances may be such that you were not in actual physical control of the vehicle.
9. The state is unable to prove beyond a reasonable doubt that you were driving or in actual physical control of a vehicle.
10. Other constitutional rights violations. If a person’s constitutional rights are violated in the course of a DUI investigation or arrest, the remedy provided by the court is to disallow the evidence from being admitted and used to for prosecution.

Favorable outcomes may include but are not limited to decreasing a felony to a misdemeanor; dismissal of some or all of the charges; reduction of sentencing; elimination of incarceration or other penalties; reduction of charges from a criminal offense to a civil offense, participation in a diversion program as an alternative to incarceration, reduction or elimination of fines.

James Novak provides a free initial consultation by phone or in person, depending on the circumstances, for active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona. Call (480) 413-1499 or contact us online today to discuss your matter and options for defending your charges.

Penalties and Criminal Defense for Marijuana DUI Charges in Mesa AZ

It is never a good idea to go to court without effective representation and plead guilty. Doing so will result in a swift and harsh conviction.

Even a first time Misdemeanor drug DUI exposes a person to 10 day jail terms; suspension of driver’s license; fines, assessments, and fees of $1,250.00, substance abuse screening and testing, probation, and other penalties the judge deems necessary.

A second DUI within 7 years calls for increased penalties of jail terms to 90 days; fines, fees, and assessments to $3,000.00; and driver’s license revocation for 1 year.

Penalties for a third DUI within 7 years will elevate a misdemeanor DUI to a felony DUI. Punishments for felony DUI expose a person to 4 months in prison.

Penalties for a fourth DUI in 7 years call for 8 month prison terms.

Fines fees and assessments for a third or fourth felony DUI are increased to $4,000.00.

A felony conviction will stay on a person’s record for years and jeopardize certain civil rights such as the right to bear arms and vote. It can adversely impact their current or future employment, credit, existing or potential scholarships, and education.

For these reasons it is important that you retain an effective criminal attorney for defense.

Many people who have been arrested feel that the cards are stacked against them, and there is no hope.

But by law, you have the right to defend your charges, and to retain an attorney to defend you.

There may be defenses that can be used to obtain a favorable outcome in your case. This is best accomplished by hiring a private practice criminal defense attorney.

James Novak, of the Law Office of James Novak, PLLC is a former prosecutor and an experienced trial lawyer.

If retained, James Novak will protect your rights, and provide a strong defense for your charges.

James Novak, will carefully evaluate your case to determine what defense strategy will likely bring you the most favorable outcome.

If you are charged with any type of DUI including Marijuana DUI, contact criminal Defense Attorney, James Novak at (480) 413-1499 in Tempe, Arizona.

Additional Resources:

• A.R. S. § 28-1381(A)(3) (Driving while under the influence)
• A.R.S.§ 36-2802 (American Medical Marijuana Act; limitations)
• A.R.S.§ 36- 2801 (Presumption marijuana medical use; protections)
• Arizona Department of Health Services –Medical Marijuana Requirements
• A.R.S. § 13- 3405 (Arizona Marijuana Laws)
• A.R.S. § 13 -103 (Affirmative Defense)
• Arizona Supreme Court (Dobson v. McClennen, November, 2015)

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

• Medical Marijuana Users Have a Limited DUI Defense
• New Affirmative Defense for DUI
• 4 Deadly Criminal Charges in Domestic Disputes
• How to Challenge, and Overcome Your DUI

It doesn’t matter that their DUI did not involve alcohol. It doesn’t’ matter that they never used alcohol a day in their lives.

Requiring a person convicted of a drug DUI to install and submit to an IID screening before they can start their vehicle, never made a lot of sense.

This was particularly true if the driver didn’t drink alcohol, considering that current IID technology does not allow for detection of drugs in a person’s body.

Current IID technology is limited to detection of spirituous liquor on a person’s breath during exhalation.

It may have served a punitive purpose; but it did nothing to prevent a driver from driving impaired due to drugs.

This however, is about to change.

Arizona’s SB 1228 has passed. It will allow for judges to have some discretion as to whether or not to impose installation and use of an IID for Drug DUI convictions.

This article provides a comprehensive look at Arizona’s Ignition Interlock Device Program and other related topics included:

• Overview of Arizona SB 1228
• Ignition Interlock Devices used in DUI Sentencing
• Arizona Removes Ignition Interlock Device Requirement for Drug DUI
• How the new law will Impact Arizona Drivers
• Driver Obligations for Use and Reporting of Ignition Interlock Device
• 10 Frequently Asked Questions about Arizona DUI IID Program
• DUI Classifications, Penalties & Criminal Defense Mesa AZ

Trends in Ignition Interlock Device Program for DUI Sentencing

An ignition interlock device (IID) is a device that is attached to a car, which uses a breathalyzer to analyze a driver’s blood alcohol content before allowing the driver to start the car.

If the device detects an amount of alcohol above a certain limit, the car will not be able to be started.

About 23 states have laws requiring the installation and use of a certified IID for a driver convicted of DUI, including Arizona.

In those states, there has been a 15% reduction in drunken driving deaths compared to the states that don’t require an IID after conviction.

Generally, a convicted driver is required to pay for and install the device, and this adds to the costs of a DUI conviction.

As of 2006, Arizona started requiring all IID systems to be based on a particular alcohol-specific electrochemical fuel sensor technology.

Those who are required to install Ignition Interlock Devices have had to submit to periodic inspections every 90 days to show they are complying with the order and have installed a functional, certified IID in every motor vehicle they operate.

The department can suspend the driver’s driving privileges if the inspection and compliance requirements are not met.

Arizona SB 1228

Elimination of Mandatory Use of Ignition Interlock Device in Drug DUI Sentencing

Arizona’s SB 1228 bill amends Sections of the Drug DUI law A.R.S. 28-1381 and other code sections related to driving under the influence.

The existing code section makes it unlawful for someone to drive or control a car while (1) under the influence of alcohol or any drug or vapor, if he or she is impaired even a little bit, (2) with a blood alcohol level of .08 or more within two hours of driving, if it results from consuming alcohol either before or while controlling a car, (3) there are certain drugs or their metabolites in the driver’s body, or (4) driving a commercial vehicle with an alcohol concentration of .04 or greater.

Arizona DUI laws still require a person convicted of impaired driving with alcohol, be required to install an IID in any car the defendant operates under A.R.S. 28-3319.

What the new bill does is remove the IID requirement for DUI offenders who are charged with driving under the influence of drugs.

It does allow a judge the discretion to order someone convicted of a drunk driving violation that doesn’t involve intoxicating liquor (someone convicted for driving under the influence of drugs) to install a certified IID in his or her car.

If the court requires installation as part of the sentence, the department will still require the defendant to install the person’s car with an IID under Section 28-3319.

In other words the court now has discretion to impose the penalty or not, where before they did not.

This allows the decision as to whether or not to require installation of an IID to be based on the unique factors and circumstances surrounding the Drug DUI incident.

The court can also order someone to install an IID on any vehicle the person operates for more than 12 months starting on the latest of these dates: (1) the date the person’s driving privilege is reinstated after a revocation or suspension, or (2) the date the department receives a conviction report. Someone who operates a vehicle that has an IID installed under the impaired driving statute has to comply with certain rules specified in Article 5.

Initially, the bill failed, but it passed after a motion to reconsider. The new law will become effective after December 31, 2016.

How Arizona’s New Drug DUI IID Law will Impact Arizona Drivers

DUI penalties may be mandatory or discretionary by the presiding judge.

The impact of the Arizona SB 1228 is that sentencing for Drug DUI charges makes IIDs discretionary by the judge in sentencing, and no longer mandatory.

After December 31, 2016, it will no longer be mandatory for a person convicted of a Drug DUI to use an ignition interlock device on the vehicle they drive.

Though it will no longer be required, the court has been given the authority to decide of the IID penalty should be ordered in drug DUI sentencing.

Driver Obligations for Use and Reporting of a DUI Ignition Interlock Device

Under A.R.S. 28-1461 a person convicted of a DUI will be required to install and use a certified IID.

The driver bears has certain responsibilities under the program in which they must comply.

Some of the driver’s obligations include:

• Install a certified ignition interlock device in any vehicle they drive;
• Submit to alcohol screening with use of the device in their vehicle each time before starting the vehicle, as well as at random intervals during operation of the vehicle;
• Incur expenses for installing and maintaining the certified IID;
• Provide proof of installation and proper functioning of the IID in the vehicle they drive;
• Show proof that they are complying; and that the device has been inspected and is operating properly at least every 3 months during the time they’ve been ordered to use the device.

The ignition interlock device service provider works closely with person and the MVD to help the driver comply with these obligations.

10 Frequently Asked Questions about Arizona’s DUI Ignition Interlock Device Laws

Q. How does the ignition interlock device prevent someone from driving impaired due to alcohol?

A. The ignition interlock device sits on top of the vehicle dashboard and is wired to the vehicle’s engine. The driver must exhale into the device before starting the vehicle. If it detects liquor on the driver’s breath, the engine will not start.

Q. How is the IID and use of it monitored?

A. The IID provider monitors usage. They are required to send maintenance and activity reports to throughout the term imposed, to the Arizona Motor Vehicle Division.

Q. When a driver gets stopped by police will the officer know whether or not that driver is required they know if a driver is required to have a certified IID installed in their vehicle?

A. Yes. Once the person’s driver’s license is reinstated, a new license is issued by the Arizona Motor Vehicle Department. It will include a label with the words “Ignition Interlock” on it.

Q. What happens if the driver tampers with the device, or violates the usage rules?

A. If it is discovered that the driver failed to comply, attempts to drive other vehicles without Certified IID, or if there is evidence of device tampering, they will be in violation of Arizona Law A.R.S. § 28-1464. Consequences of these violations may result an extension of the time period for which the IID must be used, for up to 12 more months. Specified violations under this law will also result in Class 1 misdemeanor criminal charges. In addition, any person who knowingly rents, leases, or lends a driver their vehicle knowing that driver is required to use a certified device, will also be exposed to Class 1 misdemeanor Charges.

Q. Who pays for installation of the IID?

A. The person convicted of the DUI is responsible for expenses associated with installation and monitor charges of the IID.

Q. What is the average cost of installation and use of an IID in Arizona?

A. The costs of IID vary among providers. In general there is usually an installation fee that ranges from $100.00 to $200.00. Monthly rental fees range from $75.00 to $100.00 per month.

Q. How long will a person be required to use the IID?

A. The judge will order the time length for the IID to be imposed at the time of sentencing. Ranges include 6months, 12 months, 18 months, or 24 months depending on the circumstances surrounding the conviction.

Q. Is it possible to get a restricted driver’s license with the required IID for use during the suspension or revocation period?

A. Yes. If a person meets all of the qualifications, they may be eligible to drive on a limited basis, with a restricted license. They will need to provide proof that the vehicle they will be driving is equipped with a certified ignition interlock device.

Q. Does a person convicted of a drunk driving charge need to have their vehicle equipped with an Ignition Interlock Device before their driver’s license can be reinstated?

A. Yes. After a person has satisfied the court ordered driver’s license suspension or revocation period, and all requirements ordered by the court, they will be able to apply for reinstatement of their driver’s license. Under A.R.S. § 28 – 1461 A (2) in order for a person’s driver’s license to be reinstated, or a special restricted driver’s license issued, they must provide the Arizona MVD with proof that they have installed a certified IID in the vehicle (s) they operate before their driver’s license will be reinstated.

Q. Does the IID only need to be installed in the primary vehicle driven by the person required to use the IID?

A. No. It is necessary for any and all vehicles the person will drive to be equipped with certified ignition interlock devices, not just their primary vehicle. This includes vehicles the person rents, borrows or leases.

Arizona DUI Classifications and Penalties

All DUI charges in Arizona are criminal offenses. Penalties are severe, and expose a person to jail or prison terms.

Impaired Driving charges may be brought as Misdemeanors or Felonies.

Drunk Driving charges in violation of Arizona’s Extreme DUI laws, are still misdemeanors. But in general, the higher the Blood Alcohol Content (BAC), the longer the terms of incarceration.

Misdemeanor DUI charges carry jail terms that range from 10 days to 6 months.

Aggravated DUI charges (Felony) carry prison sentences that range from 10 days to 8 months or more depending on the circumstances.

A Misdemeanor DUI will be raised to a (Felony) DUI when aggravated factors exist.

Aggravated factors include DUI while driving on a suspended, revoked, or invalid driver’s license; DUI with a passenger below 15 years of age in the vehicle; third DUI within 7 years; or DUI that causes a serious injury or fatality.

Other penalties for misdemeanor impaired driving charges include installation and use of an ignition interlock device; driver’s license suspension, probation terms, alcohol or substance abuse screening or counseling, fines, and costs.

Felony DUI penalties include those that apply to misdemeanors but are more severe, and subject a person to a felony criminal record, loss of civil rights such as the right to possess or carry a firearm, and to vote.

When a person is charged with a DUI in Arizona their freedom and future is in jeopardy. They will need a strong impaired driving defense attorney to defend their charges and make sure their rights are protected.

It is important to choose a DUI defense attorney who understands how serious a DUI charge is and can develop a strategy to challenge weak evidence, and work to get the best possible outcome.

Criminal Defense Attorney for DUI in Mesa, AZ

“Prepared to Defend”

If you are charged with any type of DUI, consult James E. Novak, DUI defense attorney in Tempe, Arizona. James Novak is former Maricopa County Prosecutor and experienced litigator. If retained, he will protect your rights, make sure you are treated fairly and provide you with a strong defense for your charges.

James Novak of the Law Office of James Novak, PLLC offers a free consultation for those charged with a DUI or other criminal offenses in Maricopa County, including the cities of Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

James Novak will speak with you directly to discuss your matter, and provide you with options for defense. Call or Contact us today at (480) 413-1499.

Additional Resources:

• A.R.S. § 28-1381
• A.R.S.§ 28-3319
• A.R.S. § 28-1464
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• Arizona SB 1228
• Certified Ignition Interlock Installers in Arizona
• Arizona Department of Transportation | IID Overview and Video

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

• Arizona Supreme Court Rules on Voluntariness of Consent for DUI Test
• Your Right to Request a New Judge in Criminal Court
• Consent to Search includes K-9 Drug Investigation
• Your Right to an Attorney before DUI Testing
• 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

A recent Marijuana DUI dismissal was overturned in favor of the state and moved for continued prosecution in the Arizona Court of Appeals.

The main legal issue was whether or not a motorist could be prosecuted for Marijuana DUI when the only evidence revealed on a blood test was an inactive chemical compound in Marijuana. In this case, the drug compound was one that does not cause impairment, “Carboxy-THC”. This is a residual compound known to stay in a person’s blood stream for 3 to 4 weeks after Marijuana use. The inactive or non-impairing compound was examined in contrast to the known active ingredient THC or Tetrahydrocannabinol. THC has been successfully argued in courts as one that causes driving impairment.

The lower court dismissed the case before appeal, on the basis that the motorist was not driving impaired. But the Arizona Court of Appeals ruled that both the active compound and the inactive compound fall within Arizona DUI Law A.R.S. 28-1381, so the motorist could still be subject to prosecution.

The impact of this ruling is that the prosecution does not need to prove that the driver was impaired. In order to prosecute the motorist for DUI with Marijuana, as long as at least one of the two compounds can be identified in the DUI blood test evidence. Another adverse impact is that a person may have used the Marijuana legally in another state, days or weeks prior to driving in Arizona, and still be arrested for Marijuana DUI.

The Arizona Court of Appeals indicated that this ruling shall not be used to set precedent. However, this presents challenges in consistency for the courts since other cases similar to this are pending prosecution.

Arizona Drug DUI Law

Currently under Arizona law A.R.S. 28-1381 a person may be guilty of DUI under the following circumstances: (1) While under the influence of intoxicating liquor or drugs while they are impaired to the slightest degree; or (2) If the person has an alcohol concentration of 0.08 percent or more, within two hours of driving or being in actual physical control of the vehicle and the alcohol was consumed either before or while driving or being in actual physical control of the vehicle; or (3) While there is any drug defined in section A.R.S.13-3401 or its metabolite in the person’s body.

A person driving under the influence of Marijuana could be arrested under items (1) or (3) depending on the circumstances of the Marijuana DUI. It is not a defense if the person is a qualified Medical Marijuana user.

Criminal Defense Attorney for Drug DUI charges Mesa, AZ

If you face any type of drug DUI charges in Arizona, you should always consult a qualified criminal attorney to discuss your case. Arizona has some of the most strict laws, and severe penalties for DUI conviction in the state. Sentencing for drug DUI charges are the same or similar to those of drunk driving. They include jail terms, suspension of driver’s license, probation, substance abuse screening and counseling; fines, fees, and assessments. Other penalties may apply. If retained an experienced criminal lawyer will protect your rights, and defend your charges. There may be defenses that you are not aware of that could lead to a dismissal of charges, or otherwise favorable outcome in your case.

Additional Resources:

• Arizona Drug DUI Laws

• Arizona Court of Appeals Division 1

• Arizona Drugs Defined Under Criminal Code

• Mesa AZ Municipal Court

• Mesa AZ Police Department

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