In 2020 Arizona voters overwhelmingly approved Proposition 207 and legalized the use of recreational marijuana in our State. While the use of marijuana is no longer a crime, driving while having THC, the psychoactive component of marijuana, in your blood, still is. Perhaps more importantly, driving with any active metabolite of THC in your blood is still a crime. Here’s why:
Arizona DUI laws criminalize a large range of behavior.
A.R.S. § 28-1381(A)(1) criminalizes driving or being in actual physical control of a car while impaired to the slightest degree due to the presence of alcohol or any drug or its metabolite.
A.R.S. § 28-1381(A)(3) criminalize driving or being in actual physical control of a car while having any drug or its metabolite in your blood, so long as the drug is listed in A.R.S. § 13-3401. Despite legalization, marijuana and its active ingredients are still included in that list. Of import is what metabolite is in your system. As THC breaks down in your system it will break down into hydroxy-THC, an active metabolite, and into carboxy-THC, an inactive ingredient. You can still be prosecuted for a DUI under this statute for only having hydroxy-THC in your system, despite no actual THC being present. Fortunately due to a court decision by the Arizona Supreme Court in State ex rel. Montgomery v. Harris (Shilgevorkyan), carboxy-THC alone cannot be the basis for a DUI charge.
Why is all of this important? Even though marijuana is legal, driving with THC or hydroxy-THC in your system is not. Unlike alcohol DUIs there is no current scientific consensus about what is an impairing amount of the drug and what is not. Even if you smoked the night before you may still have hydroxy-THC in your system, and if you’re unlucky you may be charged for a drug DUI.
So what do you do?
First, if you are pulled over, ask if you are free to leave. Be courteous and provide any documentation requested of you. If you are asked about drinking, drug use, medication, or where you are going to or from, advise the officer that you are not discussing your day without an attorney. If the officer attempts to conduct field sobriety tests refuse to do them, including any examination of your eyes. Finally, if you are placed under arrest, ask to speak to an attorney immediately, and then call an attorney once you are given an opportunity to do so. There are consequences to refusing to submit to a blood test if requested, but an attorney you speak to at the time will be in the best position to tell you whether or not to consent.
Finally, be careful. With marijuana newly legalized it is not far-fetched to think that law enforcement agencies will begin new enforcement techniques. Don’t take a chance. If you recently consumed then take a Lyft, Uber, or taxi, or stay put. And if you do get arrested, call an attorney. Gurion Legal always offers free consultations on drug DUI cases, regardless of where in Arizona you were arrested. We work tirelessly to protect our clients’ rights and have a track record of aggressive and effective representation.