US DOJ Won’t Challenge State Marijuana Laws, But Arizona Police and Prosecution Warn Motorists Can Still Be Arrested for Drug DUI Charges; Tempe DUI Lawyer Explains

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The U.S. Department of Justice’s has announced it won’t be challenging state laws legalizing marijuana. but the Maricopa County Attorney vows to pursue efforts to overturn Arizona Medical Marijuana law (AMMA), and rein in Marijuana DUI arrests. Tempe DUI lawyer James Novak says barring a legislative change, users face increased threat of marijuana charges and drug DUI arrests.

Marijuana users have never faced a higher risk of arrest and prosecution for drug DUI in Arizona, than now.

FBI 2012 Uniform Crime Reports (UCR), released last week, revealed that 658,000 were arrested for non-dangerous marijuana use or possession; and 521,196 arrests were for violent crimes such as homicide, robbery and aggravated assault. These statistics suggest that more state and federal resources are being used to arrest and prosecute non-dangerous marijuana charges than dangerous or violent crimes, said Tempe criminal defense lawyer James Novak.

The U.S. Government has acknowledged that each year billions of dollars in expenditures, law enforcement, and criminal justice, and incarceration costs are being used to prosecute non-dangerous Marijuana offenses; and that resources are better used combating and prosecuting violent crimes. This is perhaps once more reason why the Department of Justice has decided to take liberalization a step further by not interfering with marijuana laws in respective states, Novak said.

The decision, however, does come with precaution for the public and a strict message to the legalized Marijuana states. Federal prosecutors made it clear they plan to ensure persons and businesses are in compliance with their state laws. This includes making certain that proper safeguards are in place to keep marijuana out of the hands of children and minors in those states; and to make sure the marijuana is not rerouted to a non-legalized state.    

In Arizona, medical marijuana has become more available with dispensaries popping up across the state this year, according to a report from KJZZ ("Going Inside a Medical Marijuana Dispensary," August 9, 2013). As of March 12, 2013 there were a total of 36,595 active qualified cardholders, 216 dispensary agents, and 737 care givers in Arizona. This number continues to increase.

“This growth of use and availability of medical marijuana industry has complicated Drug DUI issues, in particular, that of DUI with Medical Marijuana,” said Tempe DUI lawyer James E. Novak.

The qualified Medical Marijuana possessor or user should be aware that a Medical Marijuana Card will not prevent arrest or prosecution if they are driving under the influence of it.    

"While Medical Marijuana or other impairing drugs may be legal for those with a prescription, the law surrounding DUI has not changed. Interestingly, however, the laws in place have never been administered more strictly in the State’s history as now,” Novak said.

This is due to a recent Arizona Appeals Court Case Ruling. In a Marijuana DUI case, the Appeals Court decided "Any trace of marijuana found can lead to a conviction of Driving under the Influence." The Arizona Court of Appeals, earlier this year, overturned a dismissal by a Superior Court of DUI charges against a defendant made when the defendant had a medical marijuana card (Arizona v. Harris/Shilgevorkyan, Cause No. LC2011-100433-001DT). The Court ruled that the Arizona Medical Marijuana Act was "immaterial" to DUI statutes.

Criminal Defense Attorneys for the defendants have expressed their intent to appeal the matter to the Arizona Supreme Court (Associated Press, "Arizona court ruling upholds DUI test for marijuana," Feb. 13, 2013). However, barring a Supreme Court ruling or action by the legislature, prosecutors are likely to be able to continue testing for any trace of metabolites of marijuana in the blood. But since the administration of the law is questionable, it’s safer for motorists not to drive under the influence of Marijuana or other controlled drugs in Arizona , said Novak.

Under Arizona Revised Statutes § 28-1381, Drug DUI law it is illegal to be in actual physical control of a vehicle while under the influence of any drug while impaired to the slighted degree, or if any one of drugs defined under several controlled substances is in the body or it’s metabolite defined under Arizona criminal code A.R.S. 13-3401 or its metabolite in the person's body. These controlled substances may include inactive or active marijuana compounds. For example, the active component in Marijuana is Tetrahydrocannabinol (THC). The inactive component in Marijuana is Carboxy-THC. The active ingredient THC, impacts the brain for a matter of hours. However, Carboxy-THC, a trace compound that can remain present in a person’s bodily system for up to three weeks, or longer, depending on frequency of use; rate of metabolism the users; and other factors.

The impact of case law that exists in Arizona surrounding this scenario is that if a police pulls a driver over, for example in Tempe AZ, for a violation of any kind, and has probable cause to believe they are driving under the influence of a drug or alcohol, they can obtain a warrant for a DUI blood or Urine test. If the DUI test results show any Carboxy-THC metabolites in the blood stream, then that driver may be arrested, and convicted of a DUI. This is despite the fact a person has medical marijuana card, and even if he or she had not recently used marijuana in weeks said the Tempe marijuana DUI lawyer.

Prosecutors have firmly stated their intent to continue prosecuting DUI charges against anyone with the smallest amount of marijuana in their blood stream (Arizona Republic, "Legal fight brews on impairment in medical-pot DUIs," August 9, 2013).

The stakes are high in Arizona for persons arrested for Marijuana DUI or any drug DUI charges. If fact, Drug DUI laws are even more severe than non-extreme, or non-felony DUI convictions with regard to driver’s license penalties. If convicted, a first-time Class 1 Misdemeanor offense calls for 10 consecutive days in jail; 1 year revocation of driver’s license, as compared to only 90 days suspension for alcohol related DUI convictions. Other penalties for Marijuana DUI or Drug DUI charges include $1200 in fines, fees, and assessments; probation; and alcohol/substance abuse screening, counseling, or treatment; and a criminal record.

There are many other consequences that can result from a DUI conviction. These can include loss of job, or inability to get a job; adverse impacts on school; scholarships; inability to obtain insurance or premium increases for auto insurance; adverse impacts on residency and a multitude if other aspects of life the driver enjoyed before the conviction.        

"If you are pulled over in or around Tempe and given a blood test that shows positive for marijuana, then, at least for now, that test is likely to be admissible," Novak said. "Your best strategy is to hire an attorney who can help you fight the charges."

James E. Novak, of the Law Office of James E. Novak, is a Tempe DUI lawyer who represents those accused of drugged driving, drunk driving and other crimes in Maricopa County, including Mesa, Phoenix, Gilbert, Chandler and Scottsdale.

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James Novak
since: 03/2010
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