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9/3/2013 6:00:00 AM
Marijuana DUI debate heads to Arizona courtrooms

PHOENIX (AP) - Medical-marijuana cardholders in Arizona who drive after using the drug may face a difficult legal choice: their driver's license or their marijuana card. If they use both, they could be charged with DUI.

Valley prosecutors say that any trace of marijuana in a driver's blood is enough to charge a motorist with driving under the influence of drugs and that a card authorizing use of medical pot is no defense.

But advocates of medical marijuana, which voters approved in November 2010, argue that the presence of marijuana in a person's bloodstream is not grounds for charging drivers who are allowed to use the drug.

The legal battle over the rights of medical-marijuana cardholders to drive while medicating is being fought in the state's court system. Motorists convicted in municipal courts, which typically rule it unlawful for a driver to have any trace of marijuana in his or her blood, are appealing cases to Superior Court, where judges' decisions could set precedents for how the medical-marijuana law applies to Arizona drivers.

Eighteen states and the District of Columbia authorize the use of marijuana for medical purposes, making marijuana-related DUIs an issue for police, prosecutors and politicians nationwide.

The biggest issue is deciding what blood level of marijuana makes a driver impaired, similar to the way blood-alcohol levels determine when a person is legally drunk.

In Arizona, the confusion over interpretation of the Medical Marijuana Act stems from its inception because prosecutors and police didn't have the chance to weigh in before it went to voters in 2010.

Prosecutors say Arizona law allows motorists who are not impaired to drive with prescription drugs in their system if they are using them under doctors' orders.

The problem for marijuana cardholders is that pot can't be prescribed, only recommended, offering no legal grounds for a motorist to drive with even trace amounts of the drug in their system, according to prosecutors.

For most driving-under-the-influence-of-marijuana cases, the drug charge is secondary to the charge of driving while impaired. Arizona's DUI laws have three aspects: driving while impaired to the slightest degree, driving under the influence of alcohol and driving under the influence of drugs.

The handful of cases making their way through the courts grew out of traffic stops, where drivers are typically cited for both driving while impaired to the slightest degree and driving under the influence of drugs.

Attorneys for the accused say they are willing to argue about impairment, which would allow a drug expert hired by the defense to counter testimony from a police drug-recognition expert, but that a suspect's legal participation in the state's medical-marijuana program should provide a defense to the DUI-drug charge if there is no evidence of impairment.

Prosecutors in Mesa and other jurisdictions have successfully argued to keep juries from hearing information about a suspect's medical-marijuana card, which could be appealed.

"They can make that argument (about impairment) and I think it's a fair one to make. What they can't do is preclude a jury from hearing that he has a medical-marijuana card," said Craig Rosenstein, an attorney representing a DUI-drug suspect in Mesa. "The idea that he would be able to beat the (DUI-drug) charge is impossible unless the jury can hear that they have a medical-marijuana card. Otherwise, he's just a kid smoking weed and he got caught."

Morgan Jackson Doyle, 24, was coming back from the Salt River on Memorial Day 2012 when he was stopped at a sobriety checkpoint by Mesa police near Power Road and the Red Mountain Freeway.

An officer said Doyle had reddened eyes and a raspy voice, which prompted him to ask whether Doyle had recently smoked marijuana, according to police.

Rosenstein, Doyle's lawyer, said Doyle gave the officer his medical-marijuana card with his driver's license, "out of an abundance of truth."

Doyle was put through a series of field-sobriety tests, some of which indicated impairment while others did not, before a trained drug-recognition officer was called to put Doyle through more thorough tests that look for clues of drug use.

The drug-recognition expert determined it was not safe for Doyle to drive, police said. He was cited for driving while impaired to the slightest degree and driving under the influence of drugs.

Blood tests later showed Doyle had the psychoactive component of marijuana in his blood, but in an amount that falls below levels some scientists consider the threshold for impairment.

A judge in Mesa refused to allow Doyle to introduce the card at his trial, prompting his lawyer to seek a ruling in Superior Court, which sent the case back to Mesa. If the court rules as expected, attorneys said the case will be appealed.

"I think it's ridiculous. Voters in Arizona adopted the Medical Marijuana Act, whether politicians agree or not," Rosenstein said. "My concern was, if this isn't isolated to Mesa, in theory that could make bad law for the entire state."

Phoenix prosecutors have taken the same stance on drug DUIs for marijuana cardholders, in part, because the drug does not come with any of the same controls as a standard prescription, said Beth Barnes, the city's traffic-safety resource prosecutor.

The potency of marijuana can vary among dispensaries that sell to patients, and doctors' recommendations do not have dosage limits and warning against operating heavy machinery that prescriptions usually carry, she said.

Those and other factors mean possession of a card is not relevant in DUI cases, Barnes said.

Aaron Carreón-Ainsa, Phoenix's chief prosecutor, said he understands it is legal for authorized patients to use medical marijuana, but that right can infringe on other privileges they might enjoy.

"For those people who have medical-marijuana cards, OK, it's legal. Fine," Carreón-Ainsa said. "But don't come to this building because you've been driving. Just take it and don't drive."

Though some states have tried to attach a number to impairment, experts say the practice is complicated by a number of factors including the patient's metabolism and smoking frequency.

A 10-year study of more than 8,700 DUI-drug cases in Sweden led researchers to conclude that zero-tolerance policies were probably most effective because they help identify suspects whose concentration-level might have fallen below an arbitrarily set limit while waiting to give a blood sample.

"Scientists have found it virtually impossible to agree upon the concentration of a psychoactive substance in blood that leads to impairment in the vast majority of people," the researchers wrote.

Colorado legislators consistently rejected proposals to link impairment with a particular amount of marijuana in a driver's blood, but this year passed a law allowing prosecutors to presume impairment if that level is above 5 nanograms per milliliter. Defense attorneys argue that 5 nanograms is an arbitrary amount that has no bearing on impairment.

"We need to stop looking at a meaningless number, and in the case of Arizona, not only a meaningless number but a cruel and unusual application of it: you punish somebody on a Monday morning for them killing their pain on a Friday night," said Lenny Frieling, a Colorado attorney and medical-marijuana advocate.

"I don't want impaired drivers on the road. The key in my mind is looking at whether somebody really is or is not impaired. If they're impaired, I don't care which drug impaired them."

Frieling is developing a mobile test that gauges factors, including memory and balance, that could help determine impairment, but without years of clinical trials and research about marijuana concentrations that equate to impairment, the issue often relies on police drug-recognition experts and interpretation of state laws.

Courts within the same states have been inconsistent in applying the law.

A Michigan man was charged with driving a car with a prohibited substance in his system after he told an officer during a traffic stop that he was an authorized medical-marijuana cardholder and had smoked five hours earlier.

A judge concluded that the state's medical-marijuana law protected him from prosecution unless police could prove he was impaired. Another court agreed before the Michigan Court of Appeals reversed the judge's order and determined that legislators deemed it unsafe for a motorist to drive with any amount of marijuana in their system.

The Michigan Supreme Court reversed that Appeals Court decision earlier this year and found that the state's medical-marijuana law authorized participants to have traces of marijuana in their bloodstream so long as they were not impaired while driving.

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Reader Comments

Posted: Friday, September 27, 2013
Article comment by: Jay Fleming

[Comment exceeded word limit.]

Posted: Monday, September 9, 2013
Article comment by: @ Anson

Do you understand what metabolites are? Do you realize your bloodstream can reveal metabolites from many different drugs but that their presence does not necessarily indicate intoxication?

By the way, the Army should be training their soldiers a little better if they have a lot of them going into combat under the influence of drugs and/or alcohol. Maybe you should have joined the Marines rather than fighting with those Army slouches.

Posted: Monday, September 9, 2013
Article comment by: @ Anson

Hmm, you must have been in the Army. I hear soldiers going into combat high always was a big problem for them.

Am I to understand correctly that it is your belief that no therapudic drug should have side effects that include intoxication?

Do believe those who must medicate with opiates shouldn't be allowed to drive either even if they are not actually on their meds while driving?

Posted: Thursday, September 5, 2013
Article comment by: Uncle Anson

@ @ Anson.

No I am talking about actual combat operations. Something I assume you have no first hand knowledge of. If MJ has no effects on the user then why are there users? Ok so now by using you admit you are influenced by some reaction to MJ in some way that you feel is beneficial. Ok since you use it for some influence it has on you how are you able to self evaluate if you are influenced in a way potentially harmful to you or others? At any level.

Posted: Thursday, September 5, 2013
Article comment by: mr. parker

No one has ever died from an overdose of marijuana.

The main problem with "medical" marijuana is that there are varying levels of ^9 THC in the plant material that you purchase from these "clinics". This is why medical marijuana is a scam.

Patients who might benefit from the active ingredients need to get the DEA off researchers' backs and develop and purify the active ingredients into standardized dosage forms.

The main problem now is how do you determine if someone is under the influence of marijuana when driving. Any drug that alters perception will make you a danger on the highway.

Field sobriety tests and clues like the smell of marijuana,conjunctivitis(eye inflammation) and seeing 50 bags of Doritos in plain view in the back seat should be enough.

But the defense bar without an actual level of marijuana in the blood to determine if someone is intoxicated, is going to claim they aren't impaired.

The gold standard is at the present time going to be blood testing. So now what metabolites do we test for and at what level are you considered intoxicated? This should've been established before any "medical marijuana" law was passed.

Posted: Thursday, September 5, 2013
Article comment by: Al DiCicco

"Riding High: Arizona's Zero-Tolerance Stance on Pot and Driving"

"As our cover story this week points out, state law prohibits driving with marijuana or "its metabolite in the person's body." In February, the Arizona Court of Appeals upheld the "zero-tolerance" rule in a case that's now being appealed to the state Supreme Court.

Because the appellate court ruled that "its metabolite" could be plural as well as singular, even an inert metabolite of marijuana's active ingredient, THC, which can stay in the body for weeks after the last use of the drug, counts under the proscription.

For the millions of people who now use marijuana legally under their states' laws, driving in Arizona is technically a crime.

Motorists with pot metabolites in their bloodstreams who want to avoid a marijuana DUI -- which comes with nasty fines and a one-year suspension of driving privileges, instead of the regular 90 days for booze DUIs -- may want to consult our quick primer below..."

Posted: Thursday, September 5, 2013
Article comment by: @ Anson

I assume what you're referring to is standing guard duty or such in a combat zone while loaded. And in your mind the cannabis killed them?

Keep your hat on son. Nobody is suggesting you or anyone else drive or be allowed to drive while intoxicated. That is still a crime and will continue to be. We're talking trace metabolites here... If you are not driving under the influence of a drug you shouldn't be prosecuted for, well, who knows what lurks in the minds of prohibs or why they wish to persecute people because of the presence of non-psychotropic metabolites in one's system. I sometimes refer to these extreme prohibs as America's own Taliban.

Posted: Wednesday, September 4, 2013
Article comment by: Uncle Anson

I saw it. I saw soldiers on MJ loose their lives in combat because of MJ. Nothing else just MJ.and others with them because those on MJ could not function. This was in 68-69 before the rampant use of hallucinogenics and other incapacitants started. Just MJ and nothing else. The effects of he drug have not changed in the 40 plus years since then has it? So you want to drive when or after smoking it? And place me and mine in harm's way? Pity the individual that harms me or mine who is even minimally under the influence of MJ. Same for any drug thank you.

Posted: Wednesday, September 4, 2013
Article comment by: justanobody sr

dave K:
"no one has ever died of an overdose of marijuana."
nah, they just cause other people to die in accidents , due to their careless driving!
usually they ( dope smokers) move onto stronger drugs to kill them selves!
but you don't mention that!

Posted: Wednesday, September 4, 2013
Article comment by: Dave K

Please let the author know that twenty states now permit people to use marijuana as medicine. Illinois and New Hampshire recently joined the group.

Posted: Wednesday, September 4, 2013
Article comment by: Dave K

36-2802. Arizona Medical Marijuana Act limitations

This chapter does not authorize any person to engage in, and does not prevent the imposition of any civil, criminal or other penalties for engaging in, the following conduct:

D. Operating, navigating or being in actual physical control of any motor vehicle, aircraft or motorboat while under the influence of marijuana, except that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.

Posted: Wednesday, September 4, 2013
Article comment by: Dave K

Patients need to remember the names Montgomery and Horne(y) when we next vote. These individuals are using taxpayer money to try to overturn voter passed initiatives. This harassment of patients has nothing to do with public safety but rather a desire on the part of some "sick" individuals in this state to harass those who choose to use a natural herbal remedy over prescription drugs.

One person dies every nineteen minutes from an overdose of prescription drugs. More people die of prescription drug overdoses than die of car accidents in Arizona. In the entire history of marijuana's association with man no one has ever died of an overdose of marijuana.

Posted: Wednesday, September 4, 2013
Article comment by: @ just sr

It isn't about driving under the influence, it is about driving with trace evidence of the substance in your bloodstream.

Posted: Wednesday, September 4, 2013
Article comment by: nano grams against .08

How come a intoxicated driver can have .08 in their system, but if you have 1 nano gram of Cannabis in your system and Arizona wants to charge you with a DUI, even if that nano gram was smoked 3 weeks ago and is still in your system because it takes a month for all nano grams to leave the body, so you can not be high for smoking 3 weeks ago and the medicine still shows in your system but you have no effects after 8 hours of smoking Cannabis, but you do have a limit of how much you can drink. So why the Double Standard, and it leans towards the killer drug, called Alcohol.

Posted: Tuesday, September 3, 2013
Article comment by: Smoke Cannabis

Drive on!

Posted: Tuesday, September 3, 2013
Article comment by: PIZZLEWIZZLE pizzle

If you are intoxicated from THC and drive, it should be DUI regardless.

HOWEVER- the problem is that the metabolites of THC that the police test for stay in the human body for 30-60 days! Meth or cocaine only stay in the body for around 3 days. This is because THC is FAT soluble- it stores its chemical remnants in a person's fat. Cocaine and meth are water soluble, so these users just pee their chemical remnants away very quickly when compared with marijuana. Chemical remnants do not mean actively intoxicating substances.

To claim a person that ingested marijuana several days prior to being tested is still intoxicated or "high" is just plain ridiculous.

Posted: Tuesday, September 3, 2013
Article comment by: Al DiCicco

This unconstitutional "law" in a farce and is only designed to steal liberties and money from people. A person is either impaired or not, period. If everyone was considered impaired without proof of actual impairment, thousands would be in prison unjustifiably. If the law stays as it is, it will be a plethora of money flowing and imprisonment for many lawyers fees and fines oh joy! Isn't that what Arizona lawmakers want? Yes they want to micromanage us all into more poverty. Forget about liberty, the Police State is the way to go. Ha!

Posted: Tuesday, September 3, 2013
Article comment by: The Fox Hound

If there is a problem with people driving while smoking pot why have there not been lots of accidents that would point to that. The truth is that law enforcement has been prosecuting people for using a harmless drug for years and now they want to act like they have a reason. I have been smoking Hemp for over 40 years and driving a car the whole time. Never had an accident that was my fault or a ticket for bad driving. So where is the danger. Could it be in the heads of the people who don't smoke hemp and think that no else should either. What about the morons who drive around on the phone or even worse while texting. At least they can point to statistics that show driving while texting is unsafe. Let the police go after them at least that has been proven dangerous. I guess the mobile phone lobby has more money than a bunch of pot smokers though so that won't happen. And I hate to tell just a senior that tens of thousands of people have been using pot for a very long time without very many accidents even though hemp is illegal. So relax and roll one up it won't kill ya like boose and cigarettes will it will just calm you down a little and that seems to be needed here in Kingman.

Posted: Tuesday, September 3, 2013
Article comment by: Face It

Lawmakers don't care if people are driving under impairment or not. They only want to collect the money gained from arresting and fining the individuals. Hey, police officers are to be respected and thanked for their hard work. And if a person is impaired enough to be pulled over, that's one thing. Check points on the other hand are there only to gather all the possible Fine Payers. Just like the check points in Texas and California, asking if you are Mexican or not. Serves only to harass people, and hardly ever catches a real illegal.

Face it. If no money was to be made, then nobody would even bother pulling over the drunks.

Posted: Tuesday, September 3, 2013
Article comment by: just sr

it is against the law to drive under while under the influence of prescription drugs, or alcohol , so why should this drug be any different?
a marijuana card is not a license to do as you wish, and most are fraudulently obtained any how, so if you want to smoke dope, you WILL play by the rules!

Posted: Tuesday, September 3, 2013
Article comment by: digger odell

What about all the people out there driving around all zoned out on prescribed pain meds ? Where do police and the courts stand on this ?

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