Medical Marijuana in Arizona and DUI Law

As we approach the deadline for the Arizona legislature to institute the rules for medical marijuana in the state, many are also considering the implications on other sections of their life. Medical marijuana users will be a reality very soon, and will possibly be more widespread than we might think. One issue that many medical marijuana users are not considering is driving in Arizona. Because marijuana is difficult to isolate in tests to determine intoxication, many believe that they will be able to consume marijuana and drive without repercussions. Nothing could be further from the truth, actually. Enforcement standards in the state are as high as ever, and law enforcement officers are able to detect, test for, and arrest for marijuana consumption while driving.

The key ingredient in marijuana, THC, is detectable for up to thirty days with certain forms of testing. At a minimum, with saliva testing it can be detected for up to twelve hours. This means that the state will not be able to use ARS 28-1321(2) or (3) against the medical marijuana user, since the actual presence of a legal substance is clearly defined as not illegal in ARS 28-1321(4)D. However, ARS 28-1381(1) states that if a substance is present, legality notwithstanding, and the person is legally intoxicated as observed by the arresting officer, they have are still in violation.

To clear this up, allow me to present a scenario. John is a legal medical marijuana card holder who has smoked marijuana approximately ten hours ago. He is then involved in a minor accident to which a police officer responds. The officer believes John is intoxicated He is given a saliva test, which returns positive for THC. He informs the officer that he is a medical marijuana card holder. He is not guilty of a DUI for reasons of ARS 28-1321(2-4). The officer still requests he perform a field sobriety test to determine his intoxication; John fails this test miserably. John is still going to be arrested for a DUI pursuant to the first paragraph (ARS 28-1381(1)) of the statute, which states that since John has anything in his system and is observably intoxicated he is driving under the influence.

What does this mean for medical marijuana card holders in Arizona? Simply put, driving in Arizona will be risky until the specifics of drug DUI enforcement are hammered out. At any time after smoking marijuana they will be at risk for a DUI if involved in the slightest fender bender. Since police officers respond to all accidents in the Phoenix metro area, even the careful card holder could be at risk. My advice remains to hire an attorney and have them on retainer if you are a medical marijuana card holder in the valley; they should do this, at the very least, until law enforcement has hammered out the kinks in the drug DUI enforcement system.