Criminal Liability For Driving With Marijuana Metabolite in Blood Despite Medical Marijuana Card

Dobson v. McClennen, 699 Ariz. Adv. Rep. 9 (App. Div. I, November 4, 2014) (J.Thumma)

MEDICAL MARIJUANA CARD NOT GET OUT OF JAIL FREE CARD UNDER A.R.S. §28-1381(A)(3)

Defendants were charged with violating A.R.S. §28-1381(A)(1) (driving or controlling a vehicle "[w]hile under the influence . . . impaired to the slightest degree") and A.R.S. §28-1381(A)(3) (driving or controlling a vehicle "[w]hile there is any drug defined in [A.R.S. §] 13-3401 or its metabolite in the person's body"). The municipal court excluded evidence that one defendant had a medical marijuana card from Oregon and the other had a card from Arizona.  The city dismissed the A.R.S. § 28-1381(A)(1) (under the influence) charge.  Defendants appealed their subsequent conviction to superior court where the convictions were upheld. The Arizona Court of Appeals on special action also affirmed.

A.R.S. §28-1381(A)(3) makes it a crime to have the metabolite of any prohibited drug in your blood while driving regardless of impairment. Marijuana is a federally prohibited drug.  While A.R.S. §28-1381(D) provides a person who has been prescribed such a drug is not guilty of violation of the statute, federal law prohibits any physician from prescribing it. Further the Arizona Medical Marijuana Act [AMMA] while allowing a physician to issue a “written certification” that a patient is entitled to a medical marijuana card, nowhere authorizes physicians to “prescribe” marijuana.  Similarly, there is no suggestion that a written certification under the AMMA contains the information required for a prescription in Arizona, which would include the name of the drug's manufacturer, its strength, and dosage or the prescribing medical practitioner's directions for use and the quantity prescribed.  See Ariz. Admin. Code R4-23-407(A) (Prescription Requirements; Prescription orders).

Likewise the AMMA's prohibition of criminal consequences for driving while impaired on the basis of having a metabolite of marijuana insufficient to demonstrate impairment is inapplicable here because A.R.S. §28-1381(A)(3) unlike A.R.S. §28-1381(A)(1) (a charge the city voluntarily dismissed here) does not require impairment.

Finally, the AMMA's prohibition from criminal prosecution for unlawful possession of marijuana of a card holder in possession of no more than the allowable amount of marijuana was found inapplicable here as the defendants were not charged with possession but rather driving with the drug in their system.

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