Marijuana DUI Arrests Going Up after Legalization in Arizona

by Aaron M. Black • April 09, 2021

Legalized Marijuana in Arizona Leading to Marijuna DUI ArrestsAs a criminal defense attorney, I have witnessed an uptick in the number of marijuana DUI cases since Arizona voters overwhelmingly approved Proposition 207 decriminalizing marijuana possession and use. Arizona joined our legalization neighboring states of California and Nevada.

We are waiting for Arizona data to determine the increase in marijuana DUIs and that may take some time to develop a database.

But as an indication from California, between January 2018 when that state legalized marijuana and mid-April of that year, the California Highway Patrol predicted a 70 percent annual increase in marijuana DUIs. In Colorado which legalized marijuana in 2012, traffic fatalities related to marijuana use increased by 151 percent, compared to an increase of 35 percent of traffic fatalities not involving marijuana.

The National Highway Traffic Safety Administration (NHTSA) studies indicate that tetrahydrocannabinol (THC), the psychoactive ingredient in marijuana, impacts several cognitive performances that are crucial for driving safely. These are reaction time, responding to road emergencies, motor coordination, and completing complex tasks.

Drug Recognition Experts

Arizona’s traffic officers are getting better trained and becoming more alert to marijuana users on our roads because the marijuana proposition included money to train and equip police in determining if there is marijuana consumption involved or impairment.

Arizona has for years deployed teams of Drug Recognition Experts (DRE) who have undergone extensive training to identify impairment by drugs. Some officers have become phlebotomists which allows them to draw blood for testing, a key in gauging the level of marijuana impairment. It is not inconceivable that the DRE program will be expanded.

If a driver refuses to submit to a blood draw, the license to drive will be confiscated and suspended and authorities will just secure a search warrant from a judge.

Marijuana vs alcohol DUI

Drivers who have consumed marijuana may not know that impairment to the “slightest degree,” a judgment by the arresting officer, means a DUI charge, no matter the substance involved.

How long alcohol and marijuana impairments last is the big difference. Alcohol impairment goes away after a few hours. Marijuana, however, remains in the system longer than alcohol even though impairment is not involved. Factors include how the marijuana is consumed, how much was consumed, and the amount of fat in a user’s body. THC is stored in fatty tissues and is slowly released into the bloodstream. It can stay there for as long as two days.

A marijuana user can test positive even though the THC high has passed. The THC level is measured in nanograms, which is one billionth of a gram.

For alcohol impairment authorities can determine if the blood-alcohol concentration (BAC) is at the legal limit of 0.08 percent, or 0.04 percent for professional drivers, by using a breathalyzer device. The traffic officer also will observe the suspect during field sobriety tests, and by taking and testing a blood sample, which requires a search warrant.

At present a blood test is the only way to prove marijuana use. However researchers outside of Arizona are working on devices that can detect drug use. For example, the Indiana Criminal Justice Institute recently distributed to that state’s law enforcement a handheld analyzer using a swab to detect cannabis and five other drugs.

Also underway is a proposed amendment to the Arizona DUI law that states, “It is presumed that a defendant is under the influence and impaired by marijuana if the defendant has a blood concentration of 2.0 nanograms per milliliter or more of THC within two hours of driving or in actual physical control determined by an analysis of the defendant’s blood.”

Slightest degree of impairment

Arizona is a no tolerance state so any amount of impairment is illegal. A slightest degree of impairment charge carries the same penalties as a DUI.

Actual physical control

Actual Physical Control - Car Keys in IgnitionA motorist does not need to be driving to be arrested for a marijuana DUI. All that is required is the driver is in actual physical control of the vehicle. If the vehicle’s key is in the ignition, or in the driver’s pocket, that is sufficient to meet this criteria. However, lower courts have wrestled with this law.

The actual physical control law does not provide definitions and became a contentious area of DUI law. So, the lower courts have been dealing with what actual physical control means in developing and applying case law based on the fact patterns of the particular case. This can mean inconsistencies in evaluating the law’s meaning in giving instructions to jurors.

Marijuana DUI penalties

If convicted of a marijuana DUI, penalties are the same as an alcohol DUI. If convicted the defendant will spend at least one day in jail, live with a suspended driver’s license, and be assessed significant fines and surcharges. If the case is a felony, based on causing injury or death or a high level of impairment, a prison sentence and much higher fines are imposed, as well as a criminal record that will follow the defendant for life, making a new start difficult.

Defenses for a marijuana DUI

To earn a marijuana DUI conviction, the state must prove beyond a reasonable doubt that the defendant was driving or in actual physical control of the vehicle while impaired. But people and machines are not infallible. Driving after consuming marijuana is not proof of impairment without strong medical evidence. Police may not have had a probable cause or reasonable suspicion to make a traffic stop. Every case is different, so other defenses may be available.

In iron-clad prosecution cases, a plea agreement may be possible depending upon the facts of the case.

Protecting your legal rights

The troubling thing is that using marijuana in the evening and then driving the next morning can lead to an impairment charge.

A skilled criminal defense attorney is necessary since the legalization of marijuana in Arizona is new legal territory. The best approach to win your case is to have an accomplished criminal defense attorney such as myself standing by you at the earliest possible time after an arrest for a marijuana DUI charge.

Why choose Aaron M. Black Law

The office of Aaron M. Black Law has an extensive history of aggressively defending criminal charges always with the goal of earning a dismissal of the charges by attacking the state’s evidence and procedures, while developing evidence that favor my clients.

I provide individual legal services and you will always be talking to me directly, never to an assistant.

I am rated in the top one percent of the finest lawyers in the nation by the National Association of Distinguished Counsel and I am among the top 100 of trial lawyers rated by the National Trial Lawyers Association.

Begin your defense by calling me at 480-729-1683 and I will respond promptly unless I am in court. Or use my easy contact form on my website. I defend marijuana DUI cases in justice, municipal, state, and federal courts in and near Maricopa County.

 
In light of the Coronavirus pandemic, I wanted to inform clients and potential clients I am still available for consultations. I am always available by phone, text and/or email. We can also use Facetime for social distancing. The criminal justice system is not stopping due to COVID-19.

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