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Arizona Supreme Court Ruling: AMMA Users have an Affirmative defense for DUI. They can show they did not have a high enough concentration of THC to cause impairment.

marijuana smoke 3 LargeThe Arizona Supreme Court provided a unanimous decision in a recent Marijuana DUI ruling.  The court took a closer look at how the AMMA impacts prosecution.

The Supreme Court ruled that Medical Marijuana card holders are not immune from prosecution under the state’s DUI law, which prohibits drivers from having in their blood marijuana or another chemical compound that causes impairment.

At the same time, the court also ruled cardholders, do in fact, have a limited affirmative defense under the AMMA. But it is a limited DUI Defense. The AMMA does not, and does not provide general immunity from prosecution.

If a qualified user is facing marijuana DUI charges, they can provide a evidence or testimony showing they didn’t have a high enough concentration of the active ingredient THC, in Marijuana, to cause driving impairment.

If they are successful in their challenge of impairment, they may avoid a conviction.

Overview  

This article will cover the following topics:

  • Arizona Supreme Court Ruling on Marijuana DUI;
  • Impacts of Ruling on Arizona Drivers;
  • Affirmative Defenses in Arizona;
  • When the Safe Harbor defense for Medical Practitioner Prescribed Drugs applies;
  • 5 types of evidence that can be used to provide a showing of non-impairment;
  • How many puffs does it take to cause Driver Impairment? 
  • Criminal Defense for Marijuana DUI Charges Mesa AZ

   Arizona Supreme Court Case Overview

Petitioners made no effort to show that the marijuana was in an insufficient concentration to cause impairment.” –  Arizona Supreme Court 

The case involved two defendants, both charged with two counts of driving under the influence:  a violation of A.R.S. § 28-1381(A)(1) and a violation of A.R.S. § 28-1381(A)(3).

The former, (A)(1), prohibits someone from driving while under the influence of any drug if he or she is impaired to the slightest degree.

The latter, (A) (2), prohibits driving while there is any of certain enumerated drugs or their metabolites in the person’s body. Both defendants had taken blood tests that showed they had marijuana and its metabolites in their bodies.

One of the defendants wanted to present evidence of her medical marijuana card in another state, but the municipal court denied her motion. The other held an Arizona medical marijuana card, but the municipal court granted the state’s motion to preclude this evidence from being introduced.

The State dismissed the (A)(1) charge, for driver impairment.

But the defendants were convicted of the (A)(3) charge which states that a person is in violation of a violation of the DUI law if they are driving with any drug found in their system which falls within the state’s drug definitions A.R.S. 13-3401 that includes “Cannabis”. 

The defendants appealed to the Maricopa County Superior Court, which affirmed the convictions. They then appealed to the Arizona court of appeals, which ruled that there was no immunity for defendants holding marijuana cards when charged with (A)(3).

The defendants asked the Arizona Supreme Court to review the case.

The Court explained that with an (A)(3) charge, unlike an (A)(1) charge, the state isn’t required to prove actual impairment.

The defenses for these charges are also different.  With an (A)(1) charge where a person is in violation of the law if they are driving impaired due to drugs or alcohol.  With that, it is not a valid defense against impairment to challenge the violations on the ground that the user has a medical marijuana card.

With the (A)(3) charge involving driving under the influence of the state’s defined drugs, there is an Affirmative Defense available.  This defense makes it lawful to drive under the influence of the state’s defined drugs, if they the drugs are prescribed by a licensed doctor.

The Court explained that the Arizona Medical Marijuana Act (AMMA) immunizes registered qualifying patients for their medical use of marijuana, but the immunity is limited.

AMMA’s § 36-2802 provides immunity to qualified patients who use marijuana to the extent 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.

The Court also held that possessing a registry card can create a rebuttable presumption that a particular person is using marijuana as permitted by AMMA, as long as he or she isn’t in possession of more than the permitted amount.   This means that the police, prosecution, and court will assume it is true, unless the facts are challenged and proven otherwise.

Generally a defendant may be convicted of an (A)(3) violation if the state is able to prove beyond a reasonable doubt that the driver had marijuana or an impairing metabolite in her body while driving a vehicle.

As a defense, the defendant may show by a preponderance of the evidence that use was authorized by AMMA, and that the amount of marijuana was not enough to cause impairment. Simply presenting a registry card is not enough to establish this defense.

The defendants argued that it was unfair to place the burden of proof on them because there is no threshold that is commonly accepted as Continue reading

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Why Two Appeals Court Rulings Contrasted: Justices Review Effects of AMMA on Marijuana Odor on Probable Cause.

In late July, two different Appeals Courts in Arizona released contrasting opinions involving appeals to dismiss the Marijuana evidence due to lack of probable cause for the search.

In both cases the defendants argued that the effects of Arizona Medical Marijuana Act (AMMA) were that the smell of Marijuana should not be used for determination of Probable cause.

In one case the conviction was reversed.  In the other case the conviction was affirmed.  Here we find out why they differed.

Arizona Appeals Court Ruling – Case #1 (No. 2 CA-CR 2014-0181)

On July 20, 2015, the Arizona Court of Appeals Division Two issued the first ruling.

The Court considered the effect that the Arizona Medical Marijuana Act (AMMA) had on probable cause to for issuance of search warrant, based on an odor of Marijuana.

In this case, the Appeals Court ruled that the scent of marijuana alone was insufficient evidence of criminal activity.

Therefore, it was not adequate to justify probable cause for search and seizure warrant.

The Appeals Court held that in order to satisfy the probable cause standard, the scent of the Marijuana would need to be combined with other evidence or facts, which were not presented in this case.

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Possession of 2-4 pounds indicator of commercial dealings. Convictions call for mandatory prison.

131369_pot_of_gold.jpgCultivation or manufacture of marijuana for non-medicinal purposes (or growing outside the strict guidelines provided in connection with medical marijuana cards) remains a felony in Arizona. Those arrested and prosecuted for felony marijuana manufacturing can face serious punishments at sentencing.

There have been several significant arrests in Phoenix and Tucson for cultivation of marijuana recently. In mid-May, Tucson police found a house where 356 marijuana plants in various stages of growth were growing. They also found $18,000 in cash. On June 3, 2013 a canine unit from the Arizona Department of Public Safety found a driver carrying 7 pounds of marijuana. After arresting him, the Arizona Department of Public Safety searched his house in Phoenix and found 100 marijuana plants as well as handguns and growing equipment.

But Medical Marijuana Card Holders Not without Risk

540325_plantator.jpgAlmost three years after passage, Medical marijuana remains controversial in Arizona. Medical Marijuana was legalized in 2010 through voter passage of the Arizona Medical Marijuana Act (AMMA). The purpose of the AMMA is to protect patients with debilitating medical conditions, so that they can obtain necessary relief.

AMMA allows patients to get a registration identification card to show law enforcement officers that they are permitted to use marijuana for medicinal purposes. Visitors from another state that recognizes medical marijuana, like California, with equivalent cards are also protected.

Notwithstanding these state protections, some law enforcement officers refuse to recognize the card. Federal law, which trumps state law, does not recognize or permit a medicinal use for marijuana. An appellate case heard earlier this year further legitimized medical marijuana cards, but the facts of the case illustrate that it there are still risks from a legal perspective to be a medical marijuana user in Arizona.
In the case, a California driver (the defendant) was stopped when she entered Arizona. The authorities found and seized marijuana and other contraband. The State filed drug charges against the driver, dismissing them only after she produced proof of permission to use marijuana for medical purposes. The Superior Court ordered that the driver’s marijuana be returned.

The State appealed. It argued that the superior court could not order the sheriff to return the marijuana and that Arizona law not only requires “summary forfeiture” of any marijuana seized by law enforcement, but the sheriff could not return the driver’s marijuana or risk violating federal law and getting prosecuted.

The appellate court reasoned that law enforcement officers did not seize the marijuana in connection with a drug offense, since the driver was permitted to possess marijuana for medical purposes. Nor could the State win on the grounds that it could keep marijuana that came into its possession. This was because to do that would require either bringing civil forfeiture proceedings, or to be holding drugs possessed in a crime. Since AMMA decriminalized medical marijuana, the latter situation did not exist.

The State also argues that the AMMA did not expressly require them to return marijuana from a qualifying patient. The appellate court disagreed. It noted that no penalty could be placed on a qualified patient under the statute.

The State had also argued that the sheriff could be prosecuted for transferring marijuana under federal law. This, too, the appellate court repudiated. Federal law “immunizes” law enforcement officials who follow a court order.

The State’s final argument was that the superior court could not order that the driver’s marijuana be returned to her because her possession was a federal crime. The appellate court declined to decide whether federal law preempted AMMA for purposes of adjudicating this case. There was no actual or threatened prosecution of the driver under federal law, and the State was not a party with a personal stake who had standing to argue that federal law prevented the driver from possessing the marijuana. Accordingly, the appellate court affirmed the ruling of the superior court.

It’s clear that this will not be the last time a defendant will have to deal with a situation in which state law enforcement attempt to ignore AMMA. Officers may continue to arrest drivers, requiring them to come to court to fight the charges brought against them.


Additional Resources:

Arizona Drug DUI Laws

Arizona Court of Appeals Division 1

Arizona Drugs Defined Under Criminal Code

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On July 29, 2012 Arizona’s Governor Jan Brewer denied the request to halt implementation of the Medical Marijuana Law voted in by Arizonans in November 2010.
Governor Brewer stated in a letter to the Yavapai County Attorney, that she is “duty-bound” from such halt because “the voters approved it”. Approximately 29,500 people have received their Medical Marijuana cards.
The letter signed by Arizona County Attorneys in 13 Counties, including Maricopa County, requested an immediate halt due to the following concerns:

• Arizona Medical Marijuana laws are preempted by the federal Controlled Substances Act (“CSA”);
• Imminent threats of seizures and closures of dispensaries in Arizona by the U.S. Attorney exist;
• State employees involved or who participate in conduct that is in violation of Federal offenses is compelling enough to take immediate action to halt of ADHS licensing.

Despite the fact that Governor Brewer did not support the passage of the Arizona Medical Marijuana Act (AMMA), she feels strongly she has a duty to support its’ existence which was voted into law by the people of Arizona. She stands on firm ground with her decision, and will move forward with implementation until and unless she is notified by the higher Court that State employees will be prosecuted by administration of the law within their duties.

Arizona Laws

As it stands now Medical Marijuana laws allow for, among other things the following provisions:

• No limit exists as to the amount an approved and licensed dispensary may grow;
• Qualified Patients with valid Medical Marijuana cards may purchase 2.5 ounces every two week.

Arizona Drug DUI and Marijuana DUI Laws

All medical marijuana users should understand that although they are qualified users, with valid cards, that do not prevent them from being arrested for Drug DUI.
Under A.R.S § 13-3401, any person “driving impaired to the slightest degree” due to the influence of alcohol, drugs, or Marijuana, they may still be charged with a DUI. The other fact to keep in mind is that Marijuana stays in the blood stream much longer than alcohol. So even in small amounts, it may show positive on DUI blood or chemical testing days or even weeks after it was smoked or ingested.

Consequences of DUI with Drugs or Marijuana DUI

If you are arrested in Arizona for a Drug DUI, or Marijuana DUI you should consult a criminal defense attorney to discuss your matter and defense options. Penalties for Marijuana DUI Convictions are as severe as those for Alcohol related DUI charges. They carry mandatory jail sentencing; suspension of driver’s license; probation; alcohol/drug education, counseling and screening; fines, fees, and assessment costs. You should retain proper legal representation for your charges. They will make sure your rights are protected; that you are treated fairly; and work to get the best resolution in your case. Favorable outcomes may include dismissal of charges, reduction of sentencing; avoidance of jail or other harsh penalties.

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Arizona Marijuana DUI Defense
The passing of Medical Marijuana Prop 203 does not affect Arizona’s Drug DUI laws.
The fact that you may be a qualified card holder to use Marijuana (pot, weed, grass, cannabis) does not give you immunity against the strict Arizona DUI laws. If you are stopped by the police and determined to be driving “impaired to the slightest degree” with Marijuana in your system, you may be arrested or charged with an Arizona DUI. If you have been arrested or charged with a Drug DUI or Marijuana DUI you should consult an Arizona drug defense, criminal defense, or DUI lawyer as soon as possible to discuss your Arizona DUI charges and defense options.

Arizona Marijuana DUI Laws
Arizona Law prohibits use of driving a vehicle while “impaired to the slightest degree”, due to any drug, alcohol, vapor releasing, intoxicating, or toxic substance in the body. Arizona DUI laws are strict.

Even if you are a certified card holder for Arizona medical Marijuana use, or you have taken any other drug legally prescribed by a licensed physician, or an over-the-counter drug at your local drug store, A.R.S. 28-1381 3.B. will apply. Below are portions of the
Arizona DUI drug laws:
Arizona Revised Statutes
“A.R.S. 28-1381. Driving or actual physical control while under the influence; trial by jury; presumptions; admissible evidence; sentencing; classification
A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree….

3. While there is any drug defined in section 13-3401 or its metabolite in the person’s body…

B. It is not a defense to a charge of a violation of subsection A, paragraph 1 of this section that the person is or has been entitled to use the drug under the laws of this state.

C. A person who is convicted of a violation of this section is guilty of a class 1 misdemeanor….”
(Cited in Part: Arizona State Website azleg.state.az.us/)

Arizona DUI with Marijuana Testing | DUI Marijuana evidence
The most common way Arizona police test for DUI with Marijuana is through blood testing and Urine testing. Both are controversial with regard to the test results and may be argued by your marijuana DUI defense lawyer as to whether or not they are admissible or should be suppressed as improper evidence depending on many circumstances. The prosecution will usually insist without justifiable circumstances that the blood or urine testing is accurate and admissible as evidence to use against you. A good Arizona defense Attorney will examine the evidence to determine if a compelling argument can be made to suppress it and file the proper motions.

Arizona Marijuana DUI Penalties
Arizona has some of the toughest laws in the country for Drug DUI and any DUI. Below are jail or prison guidelines for DUI convictions. Note this chart does not include other penalties, fines, fees or punishments that apply for Phoenix DUI convictions. References are from A.R.S. 28 – 1381, 28-1382, and 28-1383:

• First DUI (non-extreme) .08+ BAC……………… 24 Hours in Jail
• Second DUI (non-extreme) .08+ BAC……………..30 Days in Jail
• First DUI Extreme .15+ BAC ……………………. .30 Days in Jail
• Second DUI Extreme .15+ BAC……………………. 120 Days in Jail
• First DUI Super Extreme .20+ BAC……………….. 45 Days in Jail
• 2nd Super Extreme .20+ BAC……………………..180 Days in jail
• Felony DUI (with aggravated classification)……4 Months in Prison
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Arizona Marijuana DUI Defense Attorney
The criminal justice system in Arizona is a maze of procedures, protocol, turbulent legislation, and is not empathetic to persons charged with DUI, or DUI with drugs of any kind. The job of the Arizona prosecution is to convict you. They are not there to help you or to examine defense strategies to help you defend yourself. The judge can not do anything to help you unless proper motions and compelling arguments in your defense are presented through the proper legal channels. You will need a strong criminal defense attorney, Arizona DUI lawyer or criminal defense attorney in Arizona. There is too much for you at stake to go unrepresented by a proper Arizona DUI lawyer. They will be the your ally you need to protect your rights, make sure you are treated fairly, defend you, and do everything possible, to try to get your charges dismissed, reduced or the otherwise best outcome in your case.

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