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Charged for DUI Drugs as a Medical Marijuana Card Holder in Arizona

Even though recreational possession and use of marijuana remains illegal in Arizona, it has been legalized in the neighboring states of California, Nevada, and Colorado. The possession and use of marijuana for medical purposes in Arizona is perfectly legal though for patients who qualify and are approved for it. What comes to issue for medical marijuana patients are Arizona’s impaired driving laws. It’s illegal to drive impaired in the state when under the influence of marijuana. A conviction is equivalent in seriousness as driving under the influence of alcohol.

Marijuana and Driving Under the Influence Laws

As per ARS 28-1381 (A)(3), a driver could be found guilty of DUI Drugs if he or she is determined to have been driving or was in actual physical control of a vehicle and was “impaired to the slightest degree” by any drug or its metabolite. That’s equivalent to a “zero tolerance” law. Under ARS section 13-3401, the definition of drugs includes marijuana. As per the Arizona Supreme Court, actual physical control is defined as having “current or imminent control” over the vehicle and presenting a “real danger” to yourself or the public. Current or imminent control over a motor vehicle is determined by a totality of the facts and circumstances surrounding a case.

Supreme Court of Arizona v. Hon. Harris (Shilgevorkyn) Case

On December 11, 2010, at about 10:30 p.m., Hrach Shilgevorkyn was stopped by the Maricopa County Sheriff’s Department for allegedly speeding and making an illegal lane change. Police believed that Shilgevorkyan might have been impaired, and he was asked to perform a series of field sobriety tests. After performing the tests, Shilgevorkyan said that he had smoked “weed” the night before. He was not using it for medical purposes. He was asked to submit to blood tests which he voluntarily submitted to shortly after midnight. It was determined that carboxy-tetrahydrocannabinol (carboxy-THC) was in his blood sample. Our criminal defense attorney from DM Cantor represented Shilgevorkyan against these dui charges. What the case turned on was whether Carboxy-THC was an impairing metabolite. In a four to one decision, the Arizona Supreme Court determined that it was not. Here is a summary of the court’s decision and rationale. It focused on the interpretation of section 28-1381(A)(3).



First, the court concluded that the word “metabolite” was “susceptible to differing interpretations.” On that basis, the word’s use in section 38-1381(A)(3) was deemed to be ambiguous. Then, the court focused on the legislature’s use of the word “metabolite” as a singular word and not plural. The court reasoned that if the legislature wanted to consider more than one metabolite, it would have used the plural form of the word.

What is the Psychoactive Metabolite in Marijuana?

Hydroxy-tetrahydrocannabinol (hydroxy-THC) is the active ingredient in marijuana that produces the high. After ingesting it, the human body begins to break it down into carboxy-THC. An expert witness who testified for Shilgevorkyn at the time of trial stated that since section 28-1381(A)(3) referred to “metabolite” in singular form, it was limited to hydroxy-THC and not carboxy-THC because hydroxy-THC is the substances that bring on the high. Carboxy-THC can stay in a person’s blood for a month after ingesting marijuana, but it doesn’t give a marijuana high, and it doesn’t cause impairment.

Remarks on Statutory Interpretation

The court also stressed common sense. The majority opinion remarked that “statutes should be construed sensibly to avoid reaching an absurd conclusion.” It then stated that the prosecution’s interpretation of the words “its metabolite” includes any byproduct of marijuana. Indeed, that can lead to absurd results. Under the prosecution’s interpretation, that can lead to a DUI Drugs arrest no matter how long carboxy-THC remained in a person’s blood, even though it carries no impairing effect.

Users of Medical Marijuana

The prosecution’s interpretation of section 28-1381(A)(3) would also operate to criminalize what is otherwise legal conduct by users of medical marijuana in Arizona. Regardless of the legality of the use of medical marijuana, prosecutors need not show illegal ingestion of it. That means a legal user can be criminally charged and forced to defend a DUI Drugs when no impairing substances are even in his or her blood. The court also pointed out that the “its metabolite” language was placed in Arizona’s statute making driving under the influence illegal. The title of the statute begins with “Driving or actual physical control while under the influence ….” Nobody gets under the influence of carboxy-THC.

Determining Alcohol Intoxication vs. Marijuana Impairment

For purposes of proving that a motorist was intoxicated at the time of an Arizona traffic stop, a prosecutor need only prove the following:

  • That the defendant was driving or in actual physical control of a motor vehicle.
  • He or she had a blood alcohol concentration (BAC) of .08 or higher within two hours of driving or being in actual physical control of that vehicle.
  • The Intoxication Presumption

If that driver’s BAC was at .08 or higher, the driver is presumed to be under the influence of alcohol. Whether or not the driver was impaired doesn’t really matter, so long as the prosecution can prove the two above elements. As opposed to alcohol, there was no indicator of marijuana impairment for Shilgevorkyn in the Arizona case. Section 28-1381(A)(3) provides that when a driver tests positive for any amount of an impairing drug, he or she is presumed to be impaired. The legislature cannot penalize a driver for having a substance in his or her blood that is not capable of impairing a person. The court’s majority even noted that certain legal substances can share a metabolite with marijuana. That can result in a prosecution for ingesting a perfectly legal substance when marijuana use is suspected.

Penalties Upon Conviction

Penalties for a DUI Drugs conviction are harsh. The crime is classified as a misdemeanor and punishable by up to six months in jail. A conviction for a first offense of DUI Drugs involving marijuana is punishable by the following:

  • Minimum of 10 days in jail – up to 6 months.
  • Average of over $3,500 in fines and court costs. Not including increased auto insurance.
  • A 90-day driver’s license suspension.
  • Drug evaluation and successful completion of a drug education or treatment program.
  • Mandatory installation of an ignition interlock device into your vehicle for 1 year

The New Affirmative Defense

The Shilgevorkyn case has been tossed around the courts and legislature since it was decided in 2014. The law has now changed for qualified medical marijuana users. Now, a person cannot be convicted for driving under the influence of marijuana in Arizona due to a non-impairing metabolite detected in the blood. If that individual can show that despite the hydroxy-THC presence, he or she was not impaired while driving or being in actual physical control of a motor vehicle, there is a good chance that he or she will be found not guilty of DUI Drugs.

Remember that a person who is charged with a crime is presumed innocent. The prosecution has the burden of proving a person guilty beyond a reasonable doubt. The bar has just been raised higher in the context of DUI Drugs prosecutions of legal medical marijuana users in Arizona. Invoke and protect your rights. Don’t give police any type of statement or confession. It may be used against you in efforts to convict you of DUI Drugs. When speaking to us during your free consultation, we will advise you of your full range of legal options.

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