While Arizona DUI law has been slow to catch up with common sense when it comes to allegations of DUI resulting from marijuana, the advent of the Medical Marijuana Act has forced much needed attention on the issue and some slow progress. Much more is needed, however. 

In April, 2014, the Arizona Supreme Court held in State v. Harris (Shilgevorkyan), 234 Ariz. 343, 322 P.3d 160 (2014), that a person cannot be prosecuted for DUI if there is only an inactive (or non-impairing) metabolite (or remnant) of a drug in his system. Although the drug in question in Shilgevorkyan was the inactive metabolite of marijuana, the decision in the case can be applied to any drug or medication. And from a common sense perspective, that makes a lot of sense. A person should not be able to be prosecuted and convicted of Driving under the Influence of a Drug if their driving is not and cannot be affected or influenced by the non-impairing remnants of medication or a drug that happens to be left in their system some time later when they happen to be driving a car. 

Even after Shilgevorkyan was decided, however people were still being convicted of DUI in Arizona when there was no evidence that they were in fact impaired by what was in their system. Specifically, people who held valid Medical Marijuana cards and had ingested marijuana pursuant to their doctors' recommendations were being convicted of DUI just for having the marijuana in their system without the State ever proving they were impaired even to the slightest degree. That was because Arizona DUI law allows a person to be charged and convicted of DUI if he is operating a vehicle while having a regulated (or scheduled) drug or its remnants in his body while driving. If the person has a valid prescription for the drug and is taking the drug in accordance with that valid prescription, he can present the prescription as a defense to having the drug present in his body.

Prior to November 20, 2015, trial judges throughout Arizona were routinely prohibiting defendants from introducing evidence of valid medical marijuana cards to explain the presence of marijuana in their systems. That is because the police, the prosecuting agencies and the trial judges were claiming a medical marijuana card was based on a doctor's recommendation, and was not a prescription. While that is a ridiculous distinction that was not intended by the voters of Arizona who passed the Medical Marijuana Initiative, the Arizona Supreme Court did not per se shoot down that distinction when it finally addressed this travesty in Dobson v. McClennon, 238 Ariz. 389, 361 P.3d 374 (2015). In that decision (issued on November 20, 2015), the Arizona Supreme Court ruled that a defendant with a valid Medical Marijuana card can at least tell the jury he has a medical marijuana card. If the defendant can then prove the amount of marijuana and/or metabolite in his body was insufficient to cause impairment, they jury can find the Defendant not guilty of DUI. Although not ideal, at least that is an improvement over what trial judges were previously interpreting the law to allow. 

As an attorney, I can understand and appreciate the need for the language in our laws to be precise and clear as to what is allowed and what is prohibited. I also understand when language in the laws is not clear or precise, litigation needs to be taken up to the higher courts to clarify and interpret otherwise confusing or unclear language. Nevertheless, is it too much to expect some responsibility on the part of our police, our prosecuting agencies and our trial judges to utilize common sense and to exercise discretion to be fair in the use of power we allow them?  

The attack on common sense and sense of fairness in this area of the law continues to be fought in the trenches of courtrooms across Arizona where some police and prosecuting agencies are continuing to find any loophole they can to attack the clear intent of the voters who passed the Medical Marijuana Initiative.