Medical marijuana no defense to DUI charge

Quick reference to Marijuana / DUI cases

  1. Supreme Court Harris decision filed 4/22/2014 — (A)(3) charges must be based on an impairing chemical, and not just an inactive metabolite; this was a reversal. This was not a medical marijuana case. More Here.
  2. Court of Appeals Darrah decision filed 10/21/2014, see below. Authorized use of marijuana does not preclude (A)(3) charge.
  3. Court of Appeals Dobson and Anderson decision filed 11/4/2014, see below. Additionally, the  §28-1381D.  immunity for prescription drugs does not include marijuana.
  4. Arizona Supreme Court,  Dobson and Anderson filed 11/20/2015, see below

Darrah Court of Appeals decision filed 10/21/2014

The Arizona Court of Appeals Division 1 ruled on Oct 21, 2014 (direct link on findlaw) 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). This line of argument is put to rest in the next case.

This adds to a growing body of marijuana driving laws, in Harrisa 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).

Here’s the article from Jurist.org:

Arizona appeals court rules medical marijuana no defense to DUI charge

The Arizona Court of Appeals [official website] ruled [opinion, PDF] Tuesday that theArizona Medical Marijuana Act (AMMA) [text] does not protect legal medical marijuana users from being charged with driving under the influence (DUI). The court reviewed the appeal submitted by Travis Darrah, a legal medical marijuana license holder, and decided the Arizona Revised Statutes allowed the court to charge Darrah with a DUI based on the presence of THC in his blood irrespective of the AMMA exception [text]. Judge Kent Cattani, in a concurring opinion, upheld the finding in this specific case because the appellant failed to provide evidence that he was unimpaired by his legal medical marijuana use, but stated that the AMMA does provide medical marijuana users a valid defense to a DUI charge:

The Arizona Supreme Court thus did not squarely address the carve-out exception for authorized users under § 36-2802(D). Under this carve-out exception, in my view, an authorized user cannot be convicted under § 28-1381(A)(3) if he or she establishes that the amount of THC or marijuana metabolite in the blood was in insufficient concentration to cause impairment.

The majority opinion relied on precedent and did not consider the language of the AMMA exception to bar Darrah’s conviction…

Dobson / Anderson Court of Appeals decision filed 11/4/2014

In summary: In addition to being consistent with Darrah, this opinion makes clear there is no such thing as a prescription for marijuana, therefore the immunity clause for prescription drugs 28-1381D cannot apply.

Petioners were Dobson and Anderson (it was a consolidated special action) Case Nos. 1 CA-SA 14-0168 (or link on findlaw) and 1 CA-SA 14-0170 (Consolidated), file 11/4/2014. There are some interesting case notations at 14-0168 and 0170.

The case involved two defendants who tested positive for the active metabolite of marijuana at levels of 8.5 and 10ng/ml “which the State notes far exceed the 5 ng/ml levels ‘used in the two states that have set numerical limits’ for THC-based impairment while driving”. The defendants wanted to use the affirmative defense in §28-1381D that since they were authorized MM users, they were effectively being prescribed marijuana. The Courts disagreed.

In discussing the type of proceeding, called a special action jurisdiction, the court mentions “Because these proceedings originated in municipal court, Petitioners have no right of appeal to this court. See A.R.S. § 22-375(B)

This case is cited as Dobson v. McClennen 236 Ariz. 203, 337 P.3d 568 (App. 2014)

Dobson at Arizona Supreme Court, filed 11/20/2015

Dobson v. McClennen filed 11/20/2015. Decision from Supreme Court’s website, or Findlaw. Here is an azcentral news story on the case.

This is the crux of the decision, that 1) the Supreme court affirms that AMMA grants no general immunity from DUI charges for qualified patients, and 2) qualified patients can establish an affirmative defense if charged under (A)(3), but in essence must then prove they were not impaired:

We today hold that the AMMA does not immunize a medical
marijuana cardholder from prosecution under § 28-1381(A)(3), but instead affords an affirmative defense if the cardholder shows that the marijuana or its metabolite was in a concentration insufficient to cause impairment…

A qualifying patient may be convicted of an (A)(3) violation
if the state proves beyond a reasonable doubt that the patient, while driving or in control of a vehicle, had marijuana or its impairing metabolite in the patient’s body. The patient may establish an affirmative defense to such a charge by showing that his or her use was authorized by the AMMA – which is subject to the rebuttable presumption under § 36-2811(2) – and that the marijuana or its metabolite was in a concentration insufficient to cause impairment. The patient bears the burden of proof on the latter point by a preponderance of the evidence, as with other affirmative defenses. See A.R.S. § 13-205

It’s a bit of a mystery to me how someone proves they are not impaired; given there is no accepted numerical limits on marijuana or its impairing metabolites. In the present case, the defendant’s convictions were upheld, because they offered no evidence they were not impaired.

Moving Forward, Prop 205 and Recreational Use in Arizona

As a sidenote, in Colorado where MM has been legal for some years, now has a 5 nanograms limit for driving but it is a “permissible inference” rather than a per se limit (e.g. alchol’s 0.08BAC is a per se limit):

As Colorado legislators prepared for the country’s first legal recreational marijuana sales in January 2014, they tackled numerous regulatory issues. One of the trickiest involved determining the point at which a driver could be considered under the influence of marijuana. After much discussion, lawmakers decided on a limit of 5 nanograms of THC per milliliter of blood, but switched the per se language of the 2013 bill — which would have made any driver guilty who tested above 5 nanograms — to “permissible inference.” And that’s when things started to get hazy in the courthouse. –westword.com

Proposition 205 (legalizes recreational use of marijuana), if passed in Nov 2016, precludes lawmakers from setting a presumptive numerical limit on THC metabolite levels. This is due to

36-2860B. A PERSON MAY NOT BE PENALIZED BY THIS STATE FOR AN ACTION TAKEN WHILE UNDER THE INFLUENCE OF MARIJUANA OR A MARIJUANA PRODUCT SOLELY BECAUSE OF THE PRESENCE OF METABOLITES OR COMPONENTS OF MARIJUANA IN THE PERSON’S BODY OR IN THE URINE, BLOOD, SALIVA, HAIR OR OTHER TISSUE OR FLUID OF THE PERSON’S BODY.

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