Changes in Arizona Medical Marijuana Defenses

On December 15, 2016 and December 19, 2016, DUI Defense Attorney Gordon Thompson conducted a jury trial in the Mesa Municipal Court on a Medical Marijuana DUI case with an AMMA Cardholder defendant.


Last week the Mesa Municipal Court has reported in the ongoing battle to define how Arizona Medical Marijuana Act (AMMA) Cardholders can defend themselves in Medical Marijuana DUI cases. The issue is now being litigated because last year the Arizona Supreme Court interpreted the Arizona statutes as allowing an affirmative defense to AMMA Cardholders, but left ambiguous what an AMMA Cardholder charged with Marijuana DUI must prove in order to avail themselves of that defense.


In Arizona it is illegal to drive or be in actual physical control while impaired to the slightest degree by alcohol and/or drugs. It is also illegal to drive or be in actual physical control with a controlled substance in the body. It is a defense to the second charge that the person was taking the controlled substance pursuant to a lawful prescription. The problem for AMMA Cardholders is that it is not legally possible for a health care provider to issue a prescription for marijuana. However, the AMMA does permit health care providers to recommend that the Arizona Department of Health Services issue cards to qualifying patients authorizing the patients as AMMA Cardholders to possess and use marijuana for medical purposes. Since however an AMMA card is not a prescription the DUI laws do not provide any defense to AMMA Cardholders who were driving or in actual physical control of a motor vehicle with active marijuana or THC in their bodies, even if they were not impaired to the slightest degree.


In a 2015 case, Dobson v. McClennen, the Arizona Supreme Court interpreted the AMMA as giving AMMA Cardholders a defense after all. The court said AMMA Cardholders have an affirmative defense to the charge if the AMMA Cardholder defendant can show by a preponderance of the evidence (more likely or not) that the concentration of marijuana or THC is at a level below that which would cause impairment. This is an affirmative defense, which means the AMMA Cardholder defendant must prove it.


Left unsaid was, at a concentration level below impairment for whom, all people in general (like .08% for alcohol), or below the level for the AMMA Cardholder defendant as an individual? Complicating the issue is the fact that scientists say there is no way of measuring a universal level of marijuana or THC in the body to say at one specific level all persons are impaired.


For cases that have come up for trial since the Dobson case the State has argued that Dobson means the AMMA Cardholder defendant must show he or she is below a universal level which would cause impairment in everyone, and since scientifically there is no such universal level there is no defense. The State argues it is the defendant’s burden to argue he is below the level but since there is no universal level he cannot say he is below it. The defense argues that under Dobson what the AMMA Cardholder defendant must show is he or she is below the level for them personally, and since they know themselves better than anyone if they are below the impairment level, they can meet the affirmative defense burden by testifying they were not impaired.


So the question from Dobson is must the AMMA Cardholder show they are not guilty because they are below a nonexistent universal level of impairment? or can the AMMA Cardholder meet the burden of proving he or she is not guilty by testifying that he or she themselves know they were below their personal level for impairment?


On December 15, 2016 and December 19, 2016, DUI Defense Attorney Gordon Thompson conducted a jury trial in the Mesa Municipal Court on a Medical Marijuana DUI case with an AMMA Cardholder defendant. At the beginning of the trial the State dismissed the driving while impaired charge, and so the remaining charge was driving or being in actual physical control with the Marijuana in the Body. At the beginning of the trial the Prosecutor and the defense attorney asked the court to rule whether the defendant had to show he was below a universal level, as the State wanted, or below his personal level, which Thompson wanted. The judge ruled the AMMA Cardholder defendant could testify that he was below his personal level and need not prove it was below a universal level. The case then proceeded to jury trial with the defendant testifying he was below his personal level of impairment. The jury then returned a verdict of not guilty. This is the fourth recent similar trial Thompson is aware of in the Mesa Municipal Court, with two cases not guilty, one guilty and one a hung jury.


This issue of what the AMMA Cardholder defendant must do to prove the affirmative defense is ongoing and in fact on December 22, 2016, another case from the Mesa Municipal Court, Ishak v. McClennen, was decided wherein the Arizona Court of Appeals held the AMMA Cardholder defendant can prove the affirmative defense by showing he or she was not over their personal level. In so doing the court of appeals in effect ruled the judge in Gordon Thompson’s case was correct in her own ruling.


The Mesa City Prosecutor may very well appeal the Ishak case to the Arizona Supreme Court, however, until the Arizona Supreme Court decides differently, an AMMA Cardholder defendant can prove he or she is not guilty of driving or being in actual physical control with marijuana in their body by showing they are below the level which would cause impairment for themselves personally.


Release ID: 157858