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

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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