Attorney: Medical marijuana cards should be allowed as defense in DUI cases

The Arizona Supreme Court recently agreed to review an appeals court decision that decided drivers who have medical marijuana cards can be prosecuted for driving under the influence if they’re found to have marijuana in their system.

In two cases, defendants who had medical marijuana cards argued they should be able to use their medical marijuana cards as defense like other prescription drugs are used.  But, the District One appeals court disagreed.

The court ruled the medical marijuana law doesn’t provide immunity for patients because it’s not prescribed by a doctor, it’s recommended.

But, Scottsdale DUI defense attorney Craig Rosenstein said that decision has created an unfair situation for many of his clients. They are no longer allowed to use their medical marijuana cards as part of their defense when they’re charged with a DUI while having drugs in their system, he said.

“Jurors are not even made aware that the individual has a medical marijuana card,” he said, “so, they think you’re just a recreational smoker.”

But, Maricopa County Attorney Bill Montgomery said he agrees with the court’s decision. “We don’t want people driving on the road if they’ve been using drugs. Period,” he said.

When someone is prosecuted for a DUI, they are often charged with both driving under the influence of drugs or alcohol, and for driving while impaired to the slightest degree.

Anyone can be charged with driving while impaired, regardless of what drug they’ve taken and whether or not it’s legal.

When it comes to charges of driving under the influence, the law allows a person to drive with a drug in their system if they have a prescription from a doctor for it. And a defendant can use their prescription for that drug as part of their defense.

But, the District One ruling said medical marijuana doesn’t count as a prescription drug, partly because it is ‘recommended’ by a doctor, not prescribed, according to the Arizona Medical Marijuana Act (AMMA).

“If you do, in fact, have a condition to qualify use for medical marijuana, that you otherwise would receive a doctor’s prescription for a drug to help deal with, say, chronic pain or something related to it,” Montgomery said, “that prescription is going to tell you, don’t drive or operate heavy machinery.”

But, he says, that’s not how it works with marijuana. “So, smoke as much as you want, see if you get the affect,” Montgomery said.

Rosenstein argues not everyone who has any amount of THC, the main psychoactive ingredient in marijuana, in their system is intoxicated, especially when it comes to medical marijuana patients who use the drug for legitimate reasons.

“They’re not groggy, they don’t have any slowed reaction time,” he said, “they’re perfectly fine.”

And, he said, cardholders should be able to use their medical marijuana card as part of their defense if they are charged with driving under the influence and THC is found in their system.

“We’ll often talk to jurors afterwards and they’ll say, ‘Yeah, if he had a card, we probably wouldn’t have convicted,’ Rosenstein said. “And he had a card but he wasn’t allowed to tell the jurors that!”

“It’s a frustrating scenario to be in right now,” according to Rosenstein. “It doesn’t make any sense.”

Both Montgomery and Rosenstein agree on one thing: This is yet another legal challenge to the AMMA that could have been avoided if the law had gone through the legislative process. Instead, it was passed by voters.

An Arizona Supreme Court representative said arguments for this case will likely take place in September.