Arrested for Driving while under the Influence of Marijuana?

Driving with an illegal drug in your system is illegal in Arizona. Marijuana has a unique statute under the law, however, because it can be legal in some contexts and illegal in others. It is still unlawful to possess marijuana for recreational use in Arizona, even though neighboring states such as California and Nevada have legalized it. The use of medical marijuana through a doctor’s prescription, however, is legal.

But just like alcohol, which is also a type of legal drug, it is still illegal in Arizona to drive while impaired by the use of marijuana. In fact, under Arizona law, the prosecutor only has to show that you were impaired “to the slightest degree” by drugs or alcohol for you to be convicted of a DUI. This is why it is often said that Arizona is a zero-tolerance state for DUI and that Arizona has some of the harshest DUI laws in the country.

If you do not have a medical marijuana card, then just having marijuana in your body while driving is illegal, even if you do not show any signs of impairment.

Types of Marijuana DUI

You can be charged under two different Arizona DUIs laws if you are pulled over and chemical tests show that you have marijuana in your system.

  • ARS 1381(A)(1)“Impaired to the Slightest Degree”: Under this law, it is illegal to drive while under the influence of any drug if that drug makes you impaired to the slightest degree. The language “to the slightest degree” means that you can be prosecuted for any level of impairment, no matter how small it is, if the prosecutor can show that the impairment was caused by the marijuana in your system. Even if you have a prescription for the marijuana, you can still be prosecuted if the marijuana caused you to drive impaired.
  • ARS 1381(A)(3)Drug DUI: This law makes it illegal to drive with any drug or its metabolite in your body. The difference between the Drug DUI law and the “Impaired to the Slightest Degree” law is that the prosecutor does not need to show impairment. You could be driving perfectly fine, better than anybody else on the road, but if you are found to have an illegal drug in your system at the time of driving, you can be prosecuted under this statute.

So does this mean that if you are pulled over for DUI and a blood or breath test comes back positive for marijuana, that there is no hope? Not at all. There are several defenses that an attorney experienced in handling DUIs can assert which might get your charges lowered or dismissed.

Penalties for Marijuana DUI Charges

Driving under the influence of drugs, whether it is under the “Impaired to the Slightest Degree,” ARS 1381(A)(1) law, or the “Drug DUI” law, ARS 1381(A)(3), is a class 1 misdemeanor. A first time DUI charge is punishable with the following penalties:

  • Up to six months in jail (with a minimum 10-day term). However, a defense attorney may be able to negotiate a suspended jail sentence so that you only have to spend 1 night in jail, with the completion of an alcohol/drug assessment and recommended classes.
  • Over $2000 in fines and court costs.
  • A 90-day suspension of your driver’s license, with no driving for the first 30 days and restricted driving for the last 60 days.
  • Ignition interlock device installation in your car. This is not mandatory if there was no alcohol involved in the DUI, but the judge has discretion to add it as a term of your punishment.
  • Eight MVD points assessed to your license, which requires that you attend traffic survival school or may have other license consequences if you have prior MVD points on your license.
  • Higher Insurance Premiums. You will be required to pay about $3000 more per year for the next three years to obtain what is known as the SR-22 Insurance Policy. Along with the monetary fines, a DUI conviction will therefore at a minimum cost you over $10,000.

If you are facing your second DUI conviction within the past 7 years, the penalties are greater:

  • Up to six months in jail, but a mandatory minimum of 90 days. You may be eligible for 6 days of jail with 24 days of home detention if you complete alcohol/drug assessment and mandatory classes. Home detention allows you to go to work, but you are required to wear an ankle monitor. Not all courts in Arizona allow for home detention. If the court you are being prosecuted in does not allow for home detention, then you will have to serve at least 30 days in jail, but gives you the ability to participate in a work release program after 48 hours. This type of release allows you to leave the jail for work for 12 hours a day, 6 days a week.
  • Over $5000 in fines and court costs.
  • Driver’s license is revoked for a year.
  • Ignition interlock may be installed in your car.
  • Eight MVD points assessed to your license.
  • 30 hours of community service.
  • Higher insurance premiums–approximately $3000 more for three years.

If you are arrested for DUI and other aggravating factors are present, such as driving on a suspended license, then you might be facing aggravated DUI charges. An aggravated DUI is a felony and comes with enhanced penalties.

Medical Marijuana and Other Defenses

In 2010, the state passed the Arizona Medical Marijuana Act (the “AMMA”). This law allows patients to possess and use marijuana if they receive a prescription. Under the law, a patient must satisfy certain qualifying medical conditions. In practice, however, nearly anybody can go to a “pot doc” and obtain a prescription by asserting that they “chronic pain” or “nausea”–both qualifying conditions under the act and difficult to disprove if asserted by a patient as a symptom they have. The patient will then become registered with the Arizona Department of Health Service and receive an identification card authorizing them to purchase and possess marijuana legally.

The Arizona Supreme Court ruled in the case of Dobson v. McClennen that a valid medical marijuana card could provide what is known as an “affirmative defense” to ARS 1381(A)(3), the Drug DUI charge. This means that a medical marijuana cardholder can beat the Drug DUI charge if it can be shown that the marijuana or its metabolite was in an amount so small that it did not cause impaired driving.

Because the possession of medical marijuana card is an affirmative defense, however, this means that the burden is on you to prove that your driving wasn’t impaired. This is the opposite of how criminal law usually operates, where the burden is on the state to prove you guilty beyond a reasonable doubt. At Salwin Law Group, we work closely with expert witnesses to establish affirmative defenses for our clients when they are charged with a marijuana DUI. We can also challenge the arresting officer’s testimony, field sobriety tests, and other factors and fight to prove that the presence of marijuana in your system did not cause impairment.

Simply being charged with a crime does not automatically guarantee a conviction. There are many other defenses to DUI which can also apply to your case. These defenses can include:

  • Violation of your right to counsel.
  • Illegal traffic stop.
  • Improperly administered field sobriety tests.
  • Inaccurate chemical test readings.

We will listen carefully to you, review the police reports, any video footage of the arrest, and conduct a thorough investigation to determine if any of these other defenses may apply. Many of our clients are able to get their charges reduced or dismissed.

Contact Salwin Law for a Free & Confidential Case Review

We have an established track record of success in defending marijuana DUIs. Stewart Salwin is a former prosecutor and has handled DUIs from both sides of the aisle. He knows how the prosecution thinks and what types of evidence is persuasive to the prosecutor to agree to get the charges lowered or dropped. If the case goes to trial, he also knows the best defenses to maximize your chances of a successful outcome.

If you’ve been arrested for a marijuana DUI, there is hope! Call the Salwin Law Group today, and we will begin to work on preparing your defense immediately. We serve the greater-Phoenix area, including Tempe, Scottsdale, Mesa, and Goodyear. You will be kept informed and have the process explained every step of the way. Together, we can help you get your life back.

Call Salwin Law Group to schedule your free consultation at (480) 702-1789.