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Quirky Ruling Puts MMJ Patients at Risk of DUI

Craig Rosenstein Attorney

A recent legal ruling threatens medical marijuana card holders with a DUI if any trace remains in their system, even days after the medical benefits have worn off.

First, to state the obvious, I’ve never met anyone who advocates Driving Under the Influence. People have a wide spectrum of beliefs on what the consequences should be for people who are caught driving while drunk, but no rational person thinks that it is a good idea.

There is not a unanimous position held when it comes to marijuana, but I would presume any rational person would agree that an individual with a medical marijuana license should not be accused of driving under the influence when they are in no way impaired days, or even days after they last used.

Since Arizona’s passage of medical marijuana in the 2010 midterm elections, there has been considerable litigation taking place. The most recent case has caused some within the legal community to scratch their heads, and has made those ideologically opposed to marijuana’s use as a medicine rejoice.

In Dobson v. McClennen, The Division 1 Court of Appeals ruled that people with valid medical marijuana cards cannot use their card as a Defense to Driving Under the Influence of Drugs.

In order to understand why the Dobson v. McClennen ruling has left many people scratching their heads, it is important to understand how DUI’s are charged in Arizona. Every person charged with a DUI in Arizona is always charged with a minimum of two separate charges. The first one is always, Driving while impaired to the slightest degree. When someone has drugs (prescription or street) in their system, they are also charged with DUI drugs. If someone has a prescription for the drugs, then they are entitled to use that as a defense. It places the burden on the person accused to provide evidence that they were using the drug with a valid prescription. This makes sense from a public policy perspective. Even if you are prescribed a drug, you very well might not be okay to drive while on it, so your defense is only for the DUI drug charge. So, for example, if a doctor gives you a Vicodin prescription, and you take them and get impaired by them, you may raise your defense to the DUI drug charge but not to the impairment charge.

As a lawyer that handles DUI cases, I’ve seen an alarming increase in cases where a sober medical marijuana card holder is being prosecuted. As part of our defense, Dobson v. McClennen precludes the accused of introducing their valid medical marijuana card as a legal defense. In fact, it makes it such that a jury would never know that the person had a medical marijuana card. The jury won’t be able to distinguish between a recreational smoker and someone who is using it in accordance with a doctor’s recommendation for a specific medical condition. Ironically, this ruling is based off exactly the opposite of what the voters wanted, and is poor interpretation of poorly worded language within the Medical Marijuana Statute itself.

Hopefully, the Arizona Supreme Court will once again step in and clear up this bizarre lower Court ruling. Since modifying the unclear language in the statute would require a super majority legislature, which is not going to happen with this legislature, medical marijuana users are at risk. Hopefully the citizens of this State will become more conscious and aware of this fact- especially if they were ever called on to sit in a jury trial where there was an allegation of marijuana consumption.

Craig Rosenstein
Founding Partner, Rosenstein Law Group
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