Attorney Blog

by Jamal F. Allen, Mesa, Arizona Attorney
I recently posted a blog article discussing how registered Arizona Medical Marijuana Card Holders face arrest for driving while impaired (DUI) or driving with an illegal drug in system (DUI-D), despite implementation of and strict adherence to the guidelines set forth in the Arizona Medical Marijuana Act.

As a trial lawyer in both the criminal defense and plaintiff’s personal injury arenas, I often observe areas of the law that seem designed, or so poorly drafted, as to subject citizens to unconsidered risks. This morning I noticed an incongruity in the law about which all Arizonans should be aware.

City of Mesa, Arizona DUI-Marijuana Case
In the Mesa Municipal Court I represented a good citizen. Let’s call him AB. In February 2012, a City of Mesa Patrol Officer stopped the station wagon AB was driving for allegedly failing to drive in one lane. At the scene, the officer accused AB of having smoked marijuana.

Other than the lane violation, the officer did not observe any other traffic infractions. Interestingly, the officer did not smell, see, or find marijuana or any contraband or other paraphernalia in AB’s car. AB admitted he is a registered medical marijuana card holder and that he last medicated before he went to bed, which was about 9 hours before the traffic stop.

The patrol officer administered field sobriety tests, a drug recognition exam, a preliminary breath test, and later obtained samples of AB’s blood and urine for testing. Additionally, the officer secured a copy of AB’s Arizona Department of Health Services (ADHS) issued medical marijuana card. The blood results revealed AB’s blood contained 5 ng THC per milliliter of blood.

The City of Mesa Prosecutor’s Office charged AB with violating Arizona Revised Statutes sections 28-1381 (A)(1), driving while impaired to the slightest degree; 28-1381(A)(3), driving with an illegal drug or metabolite in system; and 28-729.1, failure to drive in one lane.

AB presented to our Mesa, Arizona law firm for consultation and to review the facts for possible legal defenses. As a NORML approved lawyer, I agreed to assist AB as a victory for him would also benefit thousands of Arizonans throughout the state.

Motion to Suppress Evidence

In the motion filed on AB’s behalf, we noted that the City of Mesa, Arizona Patrol Officer did not observe any erratic driving, other than the mild drifts that allegedly
occurred on one moderately busy roadway. Additionally, at the evidentiary hearing, the police officer admitted AB made a perfect lane change, stop at a traffic controlled
intersection, and left turn but did not clearly record these exculpatory facts in his report. An officer may make an investigatory traffic stop if the officer has a reasonable suspicion of a traffic violation. A.R.S. section 28-1594 (an officer “may stop and detain a person as is reasonably necessary to investigate an actual or suspected violation of Title 28″).

Arizona’s traffic laws, located in Title 28, are fairly comprehensive. Some police officers in Arizona have been known to stop vehicles for driving to fast, driving too slow, broken tail light, no license plate light, wide right turn, abrupt lane change, following too closely, etc.

At the evidentiary hearing, AB testified that the officer approached his station wagon and the first thing the officer said was, “So, you’ve been smoking marijuana.” According to AB, the officer did not mention traffic violations until after the he was transported to the Mesa, Arizona Police Station for processing.

Needless to say, following the evidentiary hearing, the Mesa Municipal Court Judge, denied AB’s Motion to Suppress Evidence. AB elected to proceed to trial and argue to the jury that he is a registered Arizona medical marijuana patient and used marijuana to help alleviate chronic pain associated with his diagnosed medical condition.

One week before trial, the State filed a Motion in Limine seeking to preclude the defense from arguing, mentioning, referencing, insinuating, or admitting evidence that
prior to and on the date of his arrest, AB held a valid ADHS medical marijuana card.

Motion in Limine

In response to the motion in limine, we argued that the State’s efforts to preclude the jury from learning that AB was a registered medical marijuana card holder, as irrelevant and unfairly prejudicial, was misguided and incongruent with prevailing Arizona law. The evidence, we submitted, was integral to AB’s legal defense

Additionally, we cited Arizona Revised Statute section 36-2802 (D) which provides that:

the Arizona Medical Marijuana Act (the “Act” or “AMMA”) does not prevent the imposition of civil or criminal penalties for engaging in the following conduct: Operating . . .any motor vehicle . . . while under the influence of marijuana, except that a registered qualifying patient shall not be considered under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment. (emphasis added)

AB did not dispute that he consumed marijuana. He was charged with driving while impaired to the slightest degree (ARS 28-1381(A)(1) and having an illegal drug or metabolite of that drug (marijuana) in his system (ARS 28-1381(A)(3). AB only denied he was impaired.

We argued that evidence of AB’s qualified medical marijuana status was relevant to his defense against the DUI and civil traffic charges pending against him. Additionally, precluding AB from admitting such evidence would leave the jury with the erroneous, prejudicial and unfair impression that he ingested marijuana for no purpose other than his smoking pleasure.

In the absence of Arizona law on point, our courts usually look to surrounding jurisdictions, particularly California, for guidance. In People v. Mower, 28 Cal. 4th
457,458 122 Cal. Rptr. 2d 122, 123 (Cal., 2002) the California Supreme Court ruled a defendant may raise his status as a qualified patient as a defense at trial. While the
defendant in Mower was charged with possession and cultivation, and not DUI, the guiding authority still remains.

Without reaching the issues of federal preemption, the Mesa Municipal Court Trial Judge, noted that Arizona’s DUI laws and the AMMA are incongruous but he could not read A.R.S. 36-2802 (D) as being relevant to or providing a defense to a A.R.S. 28-1381(A)(3) DUI charge. Essentially, without evidence that he is a licensed, registered, qualified, medical marijuana user, the jury, assuming no nullification, would convict AB after learning he had the metabolite, let alone, 5.4 NG of THC in his blood.

Where We Go From Here: Taxi Cabs for Life or Contact the Legislature

AB chose to resolve his case short of trial. You should not have to endure the same ordeal. There are many throughout the State of Arizona who know Arizona’s DUI laws and Medical Marijuana Act fall short of protecting patients from arrest, prosecution, and jail. Remember, the metabolite alone, is sufficient for conviction.

I should let you know that at Allen & Associates, PLC Lawyers, we represent everyday citizens who are injured due to the fault of others and citizens charged with crimes. Visit www.goodazlawyers.com to learn more. Occasionally, as we did for AB, we take on interesting serious injury or criminal defense cases that could benefit citizens other than our clients. Consider it a method of giving back.

I don’t know that our current Maricopa County Attorney or Arizona Attorney General will make any effort to massage Arizona DUI laws so that medical marijuana patients are not subjected to wrongful and mindless prosecution. The answer seems to reside in a grassroots effort to convince our legislature that medical marijuana patients need protection and that forcing those patients to choose jail or a lifetime of taxi cabs is not the answer.
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