The Arizona Court of Appeals Division 1 ruled on Oct 21, 2014 saying the exclusions in Arizona’s medical marijuana act does not prevent legal medical marijuana users from being charged with driving under the influence. See the excellent Jurist article for more details. Here is an azcentral news item about the case.
The plaintiff contended that the language of 36-2802, which was inserted into law via citizen initiative, provides immunity to any authorized marijuana user from being charged with 28-1381(A)(3) unless they drive while impaired:
36-2802(D) Operating, navigating or being in actual physical control of any motor vehicle, aircraft or motorboat while under the influence of marijuana, except 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. (emphasis added; this part is referred to in the opinion as the “carve-out”)
The court said flatly it does not provide immunity.
I’m actually a little confused by the opinion; although all three judges concurred that the plaintiff was properly found guilty of (A)(3); two seemed to be saying the carve-out doesn’t (ever?) apply (what they actually said was: “we decline to express any opinion as to the existence of a carve-out exception…” ); which one judge believed the plaintiff could have been found not guilty due to the carve-out if he had produced evidence that he was not impaired; which he did not. Interesting banter about THC levels; “Darrah’s blood contained 4.0 ng/ml of delta-
9-tetrahydrocannabinol (THC)”, the psycho active component. The is a huge grey area revolving around what numerical blood level would prove impairment.
Another interesting footnote is there is a provision in the dui law “which prohibits a DUI conviction under § 28-1381(A)(3) (drug or
its metabolite) based on drug use “as prescribed by a medical practitioner licensed pursuant to title 32, chapter 7, 11, 13 or 17.” But Darrah’s counsel conceded that issue at oral argument, acknowledging that Darrah’s certification for marijuana use was from a doctor of naturopathic medicine, that such doctors are not licensed under Title 32, Chapter 7″ (only MDs, podiatrists, and dentists are). So this could eventuallly lead to a whole new line of approach to avoiding DUI.
This adds to a growing body of marijuana driving laws, a ruling by the Arizona Supreme Court earlier this year overturned a CoA finding. Notably, that case did not involve an “authorized” user of marijuana. This earlier case was summarized concisely as follows:
Our supreme court held that a “non-impairing” metabolite of marijuana is not a “proscribed drug” listed in A.R.S. § 13-3401 and therefore its presence in a person’s body cannot support a conviction for DUI pursuant to A.R.S. § 28-1381(A)(3).