Arizona DUI Laws and Medical Marijuana

In Washington, marijuana is legal for both medical and recreational uses.  As a result of its voters legalizing the substance, the state is now undertaking the task of adopting new standards for regulating marijuana.  Washington decided to propose a standard more closely in line with that in force for other substances, such as alcohol.

One such regulation, Initiative 502, made national headlines in late 2012 because it sets an objective impairment standard: tetrahydrocannabinol (THC) content of greater than 5 nanograms per milliliter in a driver’s blood triggers Washington’s anti-DUI laws, with or without a medical use card.  I-502 has been the subject of controversy since its adoption because of the alleged dubiousness of the 5 nanogram threshold.  Although difficult, establishing a uniform objective standard for impairment should be a high priority for many states as drugs which significantly alter their user’s mental state become more widely accepted and legalized.

In contrast, Arizona, which approved medical marijuana in 2010, does not enforce a blood-content limitation in its DUI laws.  The Arizona standard, codified at A.R.S. § 28-1381, only specifically lists blood alcohol content as a factor in determining whether a driver was impaired by alcohol while driving.  Marijuana falls into the category of “any drug” and driving while impaired “to the slightest degree” is enough to violate the statute.  This is a more hardline approach and, although it appears to be objective, actually relies on law enforcement’s subjective analysis of the driver, at least at initial contact.

Police officers are trained to identify impairment using standardized tests, but the well-established .08 blood alcohol concentration (BAC) limitation for non-commercial driving is the most irrefutable (and usually error-free) form of evidence that the state uses to prove DUI violations.  A driver who is arrested and whose BAC is at or above .08 grams per 100 milliliters of blood is presumed guilty of driving under the influence as long as the blood test was performed in accordance with legal guidelines.  A driver could still be convicted of a DUI without a .08 BAC, however, with a strong enough showing of evidence of impairment.

For medical marijuana users, no such presumption exists because Arizona has not adopted a fixed standard for acceptable concentrations of active THC in the blood.  Even if a standard were to be adopted, similar to the one in Washington, it remains unclear how much marijuana is enough to reach 5 nanograms per milliliter or how long the impairment will last, to say nothing of the wisdom of the 5-nanogram cutoff, itself.

As with anyone who imbibes a reasonable amount of alcohol and wishes to drive, medical marijuana users should be careful and plan ahead.  If you need to be somewhere soon after using medical marijuana, and even though you don’t feel you’re too impaired to drive, remember that in Arizona that determination is made by the arresting officer.  Even if you are capable of operating your vehicle safely, a minor traffic infraction – a faulty headlight or failing to signal a lane change, for example – could result in a DUI arrest.

Just as hard liquor contains more alcohol than beer, some strains of medical marijuana are more potent than others.  Even using the same marijuana on different days could result in different levels of impairment based on countless variables.  Your medical marijuana card will protect you from the per se violation of having metabolites in your bloodstream, but it will not protect you from DUI if you are pulled over and subsequently arrested.

Jury Nullification in Arizona Marijuana Cases

Many of you may know William Penn as the man on the Quaker Oats packaging. Some of you may also know him as the founder of the State of Pennsylvania. What you may not know is that in 1670, William Penn was put on trial in London for soapboxing his Quaker principles. Why do we care about a case that happened 300 years ago in England? Well what if I told you that because of that case, a jury can now say, “forget the law” and make their own decisions on your innocence. Yes, even if two officers in Scottsdale, Arizona caught you with a joint, a jury of your peers could still find you ‘not guilty’ of drug possession.

How is that possible you ask? The answer is jury nullification. Jury nullification allows the jury to acquit the defendant even when the government has proven its case beyond a reasonable doubt.

It is not a surprise that prosecutors do not want you to know that you have this right. Some Arizona courts have even gone as far as to downplay the power of this right by saying, “while jury nullification is a fact of our jurisprudential process, anarchy would result from instructing the jury that it may ignore the requirements of the law.” The reality is that our legal system has jury nullification written in plain language for all to see, but the common juror does not even know about it, and the government isn’t losing sleep over that.

In a recent article in The New York Times, George Washington University law professor Paul Butler advocates the importance of jury nullification. “If you are ever on a jury in a marijuana case, I recommend that you vote ‘not guilty’—even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer.”

It is no secret that throughout the court system, especially in Arizona, marijuana cases are clogging up the docket and creating unnecessary burdens on those involved in the case.

In Arizona, first time possession of marijuana cases are offered TASC/Diversion. This gives the possessor the opportunity to avoid a felony conviction if they participate in drug treatment. Obviously there is a debate over whether casual marijuana use warrants any therapeutic intervention. For those ineligible for TASC or who do not want to participate in drug testing, a jury trial is your option. The jury has a right to simply nullify the conviction.

There have also been many cases that have used the nullification power to set otherwise guilty defendant’s free. These verdicts are more commonly known as “conscience verdicts.” Hanson v. United States, 156 U.S. 51, 102 (1895). The argument that has been made in support of jury nullification being explained to the jury before they deliberate follows this logic; a jury of your peers are meant to take the law and apply it to the facts, but the jury alone makes the decision about what facts and what law matter in your case, therefore, the jury, and only the jury, should have the right to make the determination, regardless of the facts and the law, about your innocence. Makes sense right? Well the founders of our country thought so too, that’s why jury nullification is written into our law.

So the next time you are in the breakfast isle at your local market, make sure you take a moment to tip your hat to William Penn, not only for delicious cheese steaks, but also for highlighting the power of a jury to send the message to the state that some laws do not warrant convictions.

If you are interested in viewing the full New York Times article “Jurors Can Say No” please follow the link here:

http://www.nytimes.com/2011/12/21/opinion/jurors-can-say-no.html?_r=1&src=tp&smid=fb-share

Marie J. Cacciatore is a second year law student at Phoenix School of Law and clerk for Gregg R. Woodnick PLLC.