In this video attorney Chuck Franklin speaks about how you can still get a DUI even if you have a medical marijuana card. Chuck explains what kind of charges can be filed and how you can protect yourself, he also gives examples on how to keep law enforcement from building a case as well as proving impairment.
Today we will talk about a topic that is fairly new that is causing a lot of questions in Arizona and across the country. That topic is medical marijuana and how a state’s DUI laws apply to it. First, we will review DUI laws generally, and then talk about how those laws might affect you if you are a medical marijuana user.
Often times, when someone is charged with a DUI arising out of suspected drug use they will receive two separate charges: (1) DUI – driving while impaired to the slightest degree; and, (2) DUI drugs. The former charge is fairly self-explanatory. If you consume any alcohol or drug, whether prescription or illegal, and you are impaired to the slightest degree, you are guilty of this type of DUI. The latter charge is specific to drugs and is commonly referred to as a DUI drugs. In order to be found guilty of this type of charge, the State must prove beyond a reasonable doubt that you were driving or in actual control of a vehicle, and that you had any amount of an illegal or un-prescribed drug in your system. In the event a person has a prescription for the drug or drugs in their system at the time of driving they have an affirmative defense to a charge of DUI drugs. To succeed with such a defense, the person must be able to prove two things: (1) that they were using the drug pursuant to a valid prescription; and, (2) that they were using it as prescribed. If a person can demonstrate those two elements to the satisfaction of a jury then they will properly be found not guilty of DUI drugs.
So, how does medical marijuana fit into this framework? The answer is somewhat complex because it is inconsistent with what a person using prescription drugs must show in order to defeat a charge of DUI drugs. However, before we get into how a medical marijuana user can defend himself from a DUI drugs charge, it is helpful to understand how marijuana affects a person, and how it is broken down by the body. The psychoactive ingredient in marijuana is known as THC. So, when a person ingests marijuana the THC in the marijuana acts on the person’s nervous system to produce a high. After some time has passed, usually a couple of hours, THC is broken down into another substance, which has a ridiculously long name but is generally known as Hydroxy-THC. Note that Hydroxy-THC is still psychoactive, and still causes impairment. Thus, a person with no THC in their body may still be high if there is a sufficient amount of Hydroxy-THC still in their system. After yet more time has passed Hydroxy-THC is broken down further by the body and becomes Carboxy-THC. Carboxy-THC is no longer psychoactive; meaning that regardless of how much of it is in your system, you will not be high. It is worth noting that Carboxy-THC is stored inside of the body’s fat cells, and can be detected for up to around thirty days. Thus, Carboxy-THC is what they look for when you take a urine test for a job or when trying to get some types of insurance. Fear not though, as the Arizona Supreme Court has held that a person that only has Carboxy-THC in their system cannot be found guilty of a DUI drugs, regardless of whether they have a valid medical marijuana card or not.
Now that we have a basic understanding of how THC is metabolized by the body, let’s talk about what the State must prove in order to obtain a conviction for DUI drugs when someone holds a valid medical marijuana card. Now it is the State’s burden to prove that a person was driving or in actual physical control of a vehicle. In addition, they must prove that the defendant had at least some THC or Hydroxy-THC in their system at the time of driving. This is typically done via a blood test. If the State demonstrates those two elements, they have established a prima facie case for DUI drugs. Once the State has put on their case, the defendant, if he is the holder of a valid medical marijuana card, has a unique affirmative defense. In order to succeed on that defense he must show that he: (1) had a valid medical marijuana card on the date of the alleged offense; and, (2) that the amount of THC or Hydroxy-THC in his system was insufficient to cause impairment. If a defendant can prove these two elements, then he will be found not guilty of DUI drugs notwithstanding the fact that he had some psychoactive components of marijuana in his system at the time of driving.
There are some problems with the affirmative defense provided to medical marijuana cardholders. Obviously, it is logically impossible to prove a negative. Further, there is no consensus in the scientific community regarding what level of THC or Hydroxy-THC is necessary to cause impairment. However, most experts will agree that the smaller the amount of THC or Hydroxy-THC, the less likely it is that a person is impaired. That testimony, along with observational evidence such as driving behavior and performance on field sobriety tests can be used to demonstrate that a person had an insufficient amount of psychoactive substances in their body to cause impairment. Note that this post does not provide an exhaustive list of the ways that one can show a lack of impairment. Instead, it is intended as a general explanation of the medical marijuana laws as they relate to DUI offenses.
So, what should you do if you get stopped by the police some time after ingesting marijuana? First and foremost, be polite. No case has ever been won on the side of the road, so don’t try to fight it there. If you do, you will lose and likely wind up with additional charges. Instead, know your rights and exercise them. Do not consent to roadside sobriety tests, do not show the officer your tongue, and do not make any statements regarding your use of marijuana. Instead, politely decline to answer any questions without a lawyer present. If you do this there is a good chance that you will be arrested anyway. However, by declining the field tests and not answering questions you are denying the officer and prosecutor valuable evidence that they would love to use against you in court later. If you decline the field tests and decline to answer questions but are arrested anyway, repeat your request to consult privately with counsel before submitting to a blood test. Often times a lawyer will advise you to submit to the blood or urine test once you’ve been placed under arrest in order to avoid a lengthy suspension of your driver’s license. However, every situation is unique, and the decision about whether to submit to a blood test should be made with the advice of counsel when possible.
If you or anyone you know needs legal assistance in a DUI of any kind do not hesitate to contact Attorney Chuck Franklin here: (480) 545-0700