Defending Your Medical Marijuana DUI Charges

Holders of medical marijuana cards are licensed by the state of Arizona to consume marijuana for the treatment or management of approved health conditions. However, what happens when an approved medical marijuana user is arrested for marijuana DUI? A marijuana DUI is regarded as a criminal offense. However, a licensed medical marijuana user can raise an affirmative criminal defense under § 28-1381(A)(3) when arrested and charged with the offense of driving under the influence.

The Arizona appellate court has recently considered a case where the Justices considered and decided on the elements of proving an affirmative case. In light of the recent changes, this article sheds light on the ways a licensed medical marijuana user can establish an affirmative defense in a marijuana DUI case; the burden of proof in such cases as this; the common challenges for marijuana DUI charges; as well as the defense strategies that can be adopted by a criminal defense lawyer.

Establishing Affirmative Defense

The Arizona Appeals Court has provided the needed clarity on how a licensed medical marijuana user may present an affirmative defense to the court when facing a medical marijuana DUI charge. According to the court papers, there are three principal ways by which this can be established. These include:

  • Cross-examining the officer that initiated the arrest or the prosecution’s expert witness.
  • Presenting an expert witness’ opinion in your defense
  • A testimony offered by the defendant or a layperson that witnessed the arrest of the defendant in relation to impairment issues.

A defendant who is faced with marijuana DUI charges should note that the court is more interested in the effect of the marijuana he or she has consumed as opposed to the general effect of marijuana on the larger population. This means that the court will be interested more in establishing whether the metabolite may have impaired the defendant’s ability to operate a vehicle and to what extent.

The Burden of Proof

Under the Arizona State Law A.R.S. 13-1-3 (B), an affirmative defense offers a licensed medical marijuana user a valid defense against being punished by the law. This means that such a person may be exempt from the liability of the criminal offense based on being a licensed marijuana cardholder. However, in the absence of this, the prosecuting counsel is required to prove beyond reasonable doubt that the defendant is guilty of driving while impaired.

Defense Strategies for Medical Marijuana DUI Charges

As a defendant facing Marijuana DUI Charges, below are some of the criminal defense strategies a defendant can take advantage of to prove their case.

The Presence of Non-Impairing Metabolite or Chemical

While you may have been arrested for medical marijuana DUI, your defense attorney may admit to the presence of a metabolite or chemical in your blood. However, the defense attorney will also push to establish that the metabolite or chemical is non-intoxicating or non-impairing. Your defense attorney can claim that your blood was at the time of arrest filled with an inactive metabolite like Carboxy-Tetrahydrocannabinol (THC) which is capable of showing up in the blood weeks after marijuana use.

Inconsistent Results

Your criminal defense lawyer may also prove the inconsistency between the independent lab test results and the results presented by the police. This can be proven upon submitting a request to obtain the DUI evidence sample collected by the police. If the court agrees that the results are indeed materially different, then, the prosecution’s case is weakened and your lawyer may be able to get the charges against you dropped.

Mishandling, Mislabeling, or Contamination of DUI Testing Sample

This is essentially a defense strategy aimed at weakening the evidence presented by the prosecution counsel. Your DUI lawyer may claim that the results of the DUI test conducted were influenced by the mismanagement of the testing sample obtained. If your lawyer can prove that the police officers or investigators did not follow the strict protocols put in place for the processing, administration, handling, transportation, and/or storage of the test sample, this may cause the evidence to be struck out of court or reduce its validity.

Withdrawal of Consent

The Arizona Courts have ruled that consent must be voluntarily given for DUI chemical tests. The evidence presented by the prosecution counsel may be rendered inadmissible in court if your DUI defense lawyer can prove that you may have been coerced into submitting to a DUI chemical test. The state courts also consider evidence presented from blood drawn for medical treatment without the defendant’s express permission or consent to be inadmissible.

Challenging the Effectiveness and Validity of Field Sobriety Tests

Many DUI defense attorneys have been able to save their clients from jail time by challenging the validity of roadside field sobriety tests. One of the reasons why this defense strategy is mostly used is because of the inaccuracy of field sobriety tests. Defense attorneys also perceive that field test results are often skewed to mirror the expectations of the arresting officer. To that extent, your Marijuana DUI attorney may choose to challenge the test, testing method, and result that led to your initial arrest. If your lawyer can establish that you were in no way a good test candidate due to existing health conditions as established by the National Highway Traffic and Safety Administration or that the testing device was faulty, the evidence against you may be suppressed.

No Basis for Stopping You

Your DUI defense lawyer may be able to obtain a copy of the surveillance camera from the day of your arrest. In the tape, your defense attorney may argue that there was no reason for you or your vehicle to have been flagged down by the police for a DUI check. This defense is in line with the state laws which require law enforcement officers to have a valid reason or reasonable suspicion to stop a motorist on the road. If your attorney can prove that there was no violation of the law in the events leading to the stop, then the stop is regarded unlawful.

Defending yourself in a DUI case requires the experience and expertise of trained DUI defense lawyers. Learn more about DUI and DUI defense lawyers by visiting

The Hogle Law Firm in Mesa
1013 S Stapley Dr Mesa AZ 85204
(480) 999-5334

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