Could Prop 205 Make Marijuana DUIs Harder to Prosecute?

Arizona voters will soon vote on whether to pass Proposition 205, also called the Regulation and Taxation of Marijuana Act, which seeks to regulate marijuana like alcohol. If the initiative passes, it will make the following changes to the law:

  • Adults over the age of 21 will be allowed to possess up to one ounce of marijuana for personal, private use
  • Adults will be permitted to grow up to six marijuana plants in an enclosed, locked space within their homes
  • A Department of Marijuana Licenses and Control will be created to oversee sales and production of marijuana in Arizona
  • A limited number of marijuana retail stores will be able to sell marijuana to adults over the age of 21
  • Localities will be able to impose limits on where and when marijuana businesses are allowed to operate
  • Businesses will be required to adhere to strict labeling and packaging guidelines
  • A 15% excise tax will be levied on marijuana products, which will be used for marijuana enforcement

One of the topics of discussion that has come up in regards to Proposition 205 is that the law may make it more difficult to prosecute people for driving while under the influence of marijuana. As a Phoenix criminal defense attorney, I will explain the legal issues involved.

The text of the proposition states that “driving while impaired by marijuana remains illegal,” however, the initiative also states that a driver may not be penalized for driving under the influence of marijuana or a marijuana product solely because of the presence of metabolites or components of marijuana in the person’s body. Opponents of the initiative state that this proviso will create huge obstacles for law enforcement and make it more difficult for a person to be convicted of marijuana DUI. However, because there is currently no way to objectively measure marijuana impairment in Arizona, some drivers are being convicted of marijuana DUI when they aren’t actually impaired.

While blood alcohol concentrations are specifically proven to impair drivers and there are quantitative ways to measure a drunk driver’s level of intoxication, marijuana limits are not backed by research. Furthermore, because marijuana compounds can remain in the body long after its effects have ended, simply testing for these compounds is not proof that a person was impaired at the time that they were driving. Until more research is conducted on the effects of marijuana use on driving and a scientifically-backed standard is accepted, it makes sense to make it more difficult to arrest a citizen for simply testing positive for marijuana without any other evidence that their driving was impaired.

How the Arizona Medical Marijuana Act Affects DUI Defense

In November 2015, the Arizona Supreme Court finally made room for the Arizona Medical Marijuana Act to be a part of DUI defense cases.

Originally, Arizona statute A.R.S. 28-1381(A)(3) stated, “It is unlawful for a person to drive or be in actual physical control of a vehicle in this state…while there is any drug defined in section 13-3401 or its metabolite in the person’s body.” According to this law, a person could be arrested for a DUI offense if they had any marijuana or its metabolites in their body, regardless of whether or not the drug actually caused impairment. In addition, this law did not take into consideration cardholders, those who are prescribed marijuana for medical use.

The Supreme Court changed this statute to the following: “A qualifying patient under the AMMA can still be convicted of a DUI under 28-1381(A)(3) if the prosecutor proves, beyond a reasonable doubt, that the person was driving or was in “actual physical control” of a vehicle and had marijuana or its impairing metabolite in their body.” Now, civilians who are legal cardholders can only be convicted of a marijuana DUI offense if the state can prove that the person was impaired while operating a vehicle. The new law places a burden on the defendant, and the representing party, to prove the driver was not actually driving while impaired. This ability to fight off DUI convictions by proving the driver was not impaired while operating a vehicle is called “affirmative defense.”

Accused of Marijuana DUI in Arizona? Contact Our Firm Today

If you have been arrested and accused of driving under the influence of marijuana in Arizona, you should immediately contact an experienced Phoenix DUI attorney at Suzuki Law Offices A marijuana DUI can have serious consequences affecting your freedom, driving privileges, and reputation, which is why it is essential to seek qualified legal counsel as soon as possible to discuss what defense options may be available to you. With decades of experience and a history of favorable results, you can trust in our team to put your needs first.

To schedule a free and confidential case evaluation, please contact our office today.

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