How to Defend Your Medical Marijuana DUI Charges in Arizona

Arizona Appellate Court Rules on Medical Marijuana Card Affirmative Defense; 3 Admissible Ways to establish an affirmative defense; 10 Other Marijuana DUI Defenses

A medical marijuana cardholder can raise an affirmative defense when charged with driving under the influence under § 28-1381(A)(3).

Recently, an Arizona appellate court considered an important case where the Justices reviewed what it takes to prove this affirmative defense.

This article sheds light on some important related criminal law and defense topics:

  • 3 ways a person facing Medical Marijuana DUI charges may establish an affirmative defense;
  • The burden of proof for an Affirmative Defense;
  • 10 other common challenges for Marijuana DUI charges;
  • How a criminal attorney can defend your Marijuana DUI charges

Overview of Arizona Court of Appeals Opinion

The incident began after the defendant was stopped by  police for allowing his vehicle to drift slightly into the next lane.

When an officer approached the car, he smelled marijuana.

The defendant told the officer he’d been speaking to someone else in the car and moved the car back into place after he realized it drifted across the line.

The officer saw that the defendant’s eyes were watery and bloodshot. He asked the defendant when he’d last smoked marijuana.

The defendant told the officer he had smoked marijuana that morning just after he woke up.

During one of the DUI field sobriety tests, the officer reported that defendant had body and eye tremors.

The suspect was charged with driving under the influence of marijuana or its metabolite under A.R.S. § 28-1381(A)(3), and impaired driving to the slightest degree under A.R.S. § 28-1381(A)(1).

Before the trial began, the prosecution tried to keep out evidence that the defendant had a medical marijuana card.

The defendant argued that it was unfair for the jury to think it was illegal for him to smoke marijuana.

Before the Arizona Supreme Court ruled on another important medical marijuana card case (Dobson), the State’s motion to exclude the evidence was granted on the ground that the medical marijuana card was irrelevant.

At trial, the prosecution hired an expert who testified the defendant had 26.9 ng/ml of THC in his blood.

The defendant also retained an expert witness for his defense.

The defense expert testified that there was no agreement about the concentration of THC that would impair a person.

That expert also testified that what the defendant had in his body was a quantity that would impair some people, but might not impair everyone.

The jury acquitted the defendant of impaired driving under Arizona’s DUI law 28-1381(A)(1).

However, the jury convicted him of driving with marijuana or its metabolite in his body under § 28-1381(A)(3). The judge sentenced him to 180 days of incarceration, with half the term suspended.

The defendant appealed his conviction for driving under the influence of marijuana, to the superior court.

The superior court reasoned that even if it was a mistake for the municipal court to prevent the defendant from mentioning his medical marijuana card, the defendant hadn’t shown he could get an expert who would testify he wasn’t impaired at 26.9 ng/ml.

The defendant petitioned by special action to the appellate court. The appeals court looked at the recent Arizona Supreme Court decision in Dobson, which explained that the immunity provided by AMMA was not absolute.

In Dobson, it was not enough for a qualified user to simply present their medical marijuana card to establish an affirmative defense.

The court noted that under  A.R.S. § 36-2802(D) (2016), a medical marijuana cardholder could be prosecuted in some circumstances, but not solely for driving with the presence of marijuana or its metabolite in their body.

The court explained that a qualified patient could establish an affirmative defense by proving by a preponderance of the evidence that (1) he was using medical marijuana as authorized by AMMA, and (2) the metabolite was in a concentration that was not enough to impair him while driving.

The appellate court found that the municipal court had made a mistake in preventing the defendant from submitting evidence to support this affirmative defense.

The appellate court explained that when a defendant raises the affirmative defense, the question is whether the cardholder was impaired, rather than whether the amount of THC in his blood is enough to impair anyone else.

Additionally, the court explained that nothing in the statute required the defendant to present expert testimony on whether he was impaired because of THC.

The defendant simply had to establish that the metabolite in his body was not enough to impair him at the time he was in control of the car, by offering any admissible evidence. Accordingly, the conviction was vacated.

3 Ways to Establish an Affirmative Defense for Medical Marijuana DUI

While the Arizona Appeals Court did not address all types of evidence that can be used by a qualified patient to establish an affirmative defense, it provided some much-needed clarity.

The three ways that were discussed in this case in which a cardholder may establish an Affirmative defense include:

  • Cross examination of the prosecution’s expert witness, or the officer who made the arrest.
  • Offering the opinion of an expert witness hired in your defense.
  • The defendant’s own testimony, or the testimony of lay persons who may have witnessed and observed the driver’s behavior with regard to the impairment issue.

In addition, it is helpful for defendants to know that courts will be looking at whether an individual defendant with metabolites in his blood was impaired, rather than whether the public in general may experience impairment while they have a particular amount of THC in their system.

The Burden of Proof for an Affirmative Defense

Under Arizona law A.R.S. 13-103 (B) an affirmative defense is one that offers a way for a defendant to be excused from criminal liability of an otherwise unlawful act.

In absence of an affirmative defense situation, the prosecution has the burden of proving beyond a reasonable doubt that a person committed a crime, and the defendant is presumed innocent from the start.

In an affirmative defense, the prosecution needs to prove the elements of the crime were committed beyond a reasonable doubt.  But the defendant must also prove an affirmative defense applies by the preponderance of the evidence, a lesser standard than reasonable doubt.

10 Other Defenses for Marijuana DUI Charges

The DUI defenses that may be used to challenge your charges will vary based on the unique set of circumstances surrounding your matter.

Below are 10 examples of common defenses that are often used to challenge and defend Marijuana DUI charges:


  1. The chemical found in your bloodstream was a non-impairing ingredient or metabolite in Marijuana such as Carboxy-Tetrahydrocannabinol (THC).  This substance is an inactive metabolite that can remain in a person’s body up to several weeks after using marijuana.
  2. Independent lab testing results were inconsistent with police lab results.  You have the right to request a sample of the DUI evidence for the purposes of your defense.  If the results are materially different,  it weakens the validity of the police results.  If the court agrees, the evidence can be suppressed or not used against you.
  3. The DUI testing sample was mishandled, mislabeled, contaminated, or the subject of other protocol violations. Strict procedures are in place for the administration, processing, handling, storage and transport of chemical tests.  If they are compromised, it may reduce the validity of the results of the sample.
  4. You did not give a voluntary consent for the DUI chemical test.  The Arizona Courts have determined that in order for a consent to be given voluntarily, they must be given freely, and in absence of coercion.  Further if a person refuses medical treatment than the drawing of blood for DUI purposes as part of subsequent medical treatment, then the blood draw is considered to be involuntary as well.
  5. Challenges to validity of the field sobriety tests and their results.  Roadside testing has long been the subject of court challenges.  One reason for this is their high inaccuracy rate.  Another reason is that the results are often perceived as being biased, since the police administer and grade the test unilaterally. Numerous other challenges exist including but not limited to the the fact that the driver was not a good candidate for testing as recognized by the National Highway Traffic and Safety Administration due to existing medical conditions.
  6. The officer did not have reasonable suspicion to pull you over.  Police must have reasonable suspicion that a violation of the law is in progress or has occurred in order to stop you for a DUI investigation, or the stop is unlawful.
  7. The officer did not have probable cause to arrest you.  Probable cause is a higher standard than reasonable suspicion.   Under the 4th Amendment, the police must have reasonable grounds to arrest you.  This means the police need evidence and not just a hunch that you were driving impaired.
  8. The driver was not in actual physical control of the vehicle.   There are a number of factors that need to be considered when determining if a person was in actual physical control of a vehicle.  These circumstances may be such that you were not in actual physical control of the vehicle.
  9. The state is unable to prove beyond a reasonable doubt that you were driving or in actual physical control of a vehicle.
  10. Other constitutional rights violations.  If a person’s constitutional rights are violated in the course of a DUI investigation or arrest,  the remedy provided by the court is to disallow the evidence from being admitted and used to for prosecution.

Favorable outcomes may include but are not limited to decreasing a felony to a misdemeanor; dismissal of some or all of the charges; reduction of sentencing; elimination of incarceration or other penalties; reduction of charges from a criminal offense to a civil offense, participation in a diversion program as an alternative to incarceration, reduction or elimination of fines.

James Novak provides a free initial consultation by phone or in person, depending on the circumstances, for active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona. Call (480) 413-1499 or contact us online today to discuss your matter and options for defending your charges.

Penalties and Criminal Defense for Marijuana DUI Charges in Mesa AZ

It is never a good idea to go to court without effective representation and plead guilty.  Doing so will result in a swift and harsh conviction.

Even a first time Misdemeanor drug DUI exposes a person to 10 day jail terms; suspension of driver’s license; fines, assessments, and fees of $1,250.00, substance abuse screening and testing, probation, and other penalties the judge deems necessary.

A second DUI within 7 years calls for increased penalties of jail terms to 90 days; fines, fees, and assessments to $3,000.00; and driver’s license revocation for 1 year.

Penalties for a third DUI within 7 years will elevate a misdemeanor DUI to a felony DUI.  Punishments for felony DUI expose a person to 4 months in prison.

Penalties for a fourth DUI in 7 years call for 8 month prison terms.

Fines fees and assessments for a third or fourth felony DUI are increased to $4,000.00.

A felony conviction will stay on a  person’s record for years and jeopardize certain civil rights such as the right to bear arms and vote.  It can adversely impact their current or future employment, credit, existing or potential scholarships, and education.

For these reasons it is important that you retain an effective criminal attorney for defense.

Many people who have been arrested feel that the cards are stacked against them, and there is no hope.

But by law, you have the right to defend your charges, and to retain an attorney to defend you.

There may be defenses that can be used to obtain a favorable outcome in your case.  This is best accomplished by hiring a private practice criminal defense attorney.

James Novak, of the Law Office of James Novak, PLLC is a former prosecutor and an experienced trial lawyer.

If retained, James Novak will protect your rights, and provide a strong defense for your charges.

James Novak, will carefully evaluate your case to determine what defense strategy will likely bring you the most favorable outcome.

If you are charged with any type of DUI including Marijuana DUI, contact criminal Defense Attorney, James Novak at (480) 413-1499 in Tempe, Arizona.

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