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Medical Marijuana and DUI in Arizona

Marc Victor

Despite the existence of voter supported medical marijuana laws in Arizona, the current trends towards national legalization and the total failure of the foolish “drug war” controversy about the legalization of marijuana remains. Indeed, criminal prosecutions involving marijuana remain as aggressive as ever. Horrible injustice regarding marijuana possession, sales, production and transportation remains alive and well in Arizona’s courts.

From my vantage-point as a criminal defense attorney for over twenty years, it seems to me prosecutors have become more aggressive in criminal marijuana prosecutions and plea offers have become even more harsh and immoral. I suspect the reason for this increase in harshness towards marijuana users is part of an intentional effort to make it appear as if marijuana crimes are on the rise in preparation for the inevitable battle over recreational use of marijuana in Arizona. Don’t be fooled!

In this unjust and overly harsh climate for marijuana users, heightened awareness of the existing laws is critical. Medical marijuana users sometimes forget that an Arizona medical marijuana card does not protect the cardholder from a criminal prosecution for driving while impaired to the slightest degree as a result of marijuana use. Indeed, under current Arizona law, the mere existence of marijuana or the active metabolite of marijuana in a user’s blood will support a DUI conviction; even for a legal, cardholding medical marijuana user. Said another way, the existence of a valid medical marijuana card does not protect a user from a DUI even without any showing of impairment.

In addition to DUI laws, which remain applicable to legal medical marijuana users, there are also several other potential traps and yet unresolved issues of which medical marijuana users need to be aware. Users who are legally authorized to cultivate are routinely prosecuted for having more than 2.5oz of marijuana in their possession despite the fact that twelve legal marijuana plants will almost certainly produce an amount far in excess of 2.5oz. As well, lots of unresolved legal issues surround medical marijuana users and gun possession laws.

Portions of the Arizona Medical Marijuana Act have already been determined in court to be vague and unreasonably difficult to understand for the ordinary person. Whether anyone can “sell” marijuana or receive reimbursement for marijuana remains an unclear and unresolved question. Even technical violations of the Arizona Medical Marijuana Act can invalidate all legal protections and pave the way for a criminal prosecution.

Despite the fact, there are many issues still unresolved for medical marijuana users. Undercover officers have been dispatched in force to lure legal marijuana users into violating some unclear or even technical aspect of the Act so as to allow criminal prosecution. The fact that a legal medical marijuana user was intending in good faith to follow the law is generally irrelevant in a criminal prosecution.

All people are always required to follow all laws, regardless of their erroneous but good faith views about complying with the law. We all know ignorance of the law is no excuse. Medical marijuana users are well advised to proceed with extreme caution and avoid pushing the limits of the yet unresolved edges of the Arizona Medical Marijuana Act.

Marc J. Victor is an Arizona State Bar Certified Specialist in Criminal Law who has practiced Criminal law for over 20 years.

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