The Future of Marijuana DUI Is Up In Smoke: A New Frontier In Arizona’s Age of Legal Recreational Marijuana

 Posted on November 09, 2020 in DUI

Arizona voters made history this November when they approved legalizing recreational marijuana. Beginning November 30, 2020, adults 21 years or older can legally possess up to an ounce of marijuana, with no more than five grams in a concentrated form, and can grow up to six marijuana plants at home, as long as the plants are within a lockable enclosed area and out of public view.

This ballot initiative, called Proposition 207, will give the Arizona Department of Health Services (AZDHS) responsibility for regulating marijuana retail stores and cultivation facilities. According to Ballotpedia, the passage of Prop. 207 also allows Arizonans who have been convicted of certain marijuana-related crimes such as possession, consumption, cultivation, and transportation to petition for the expungement of their criminal record beginning July 12, 2021.

Although the law has officially been passed, the rules regarding marijuana DUI prosecution are still undecided. In other states that have legalized the plant, the legal limit for driving while high is 5 nanograms of THC per milliliter of blood.

This would be determined through a blood test administered by law enforcement to a driver whom they suspect is driving under the influence. The testing method differs from the one used for alcohol and takes a lot longer to get results.

NPR reported that scientists have continuously struggled to find a definitive biological measurement for marijuana intoxication, something equating to the 0.08 BAC measurement used for alcohol intoxication. Meanwhile, legislators in states with legal pot are pressed to find a way to quickly identify and penalize people who are too high to drive.

“It's almost impossible to come up with one number. Occasional users can be very impaired at one microgram per liter, and chronic, frequent smokers will be over one microgram per liter maybe for weeks,” Marilyn Huestis, head of the Chemistry and Drug Metabolism section at the National Institute on Drug Abuse, told NPR in 2016.

Andrea Roth, a professor of law at the University of California – Berkeley, said: "If we are going to criminalize DUI marijuana, we need to take information from scientific studies and use it to decide if that risk is sufficiently high to be so morally blameworthy that we call it a crime. But we don't, so picking 5 nanograms per milliliter is arbitrary.”

Similarly, Paul Armentano with the National Organization for the Reform of Marijuana Laws argued that trace concentrations of THC can remain in a person’s blood for extended periods of time beyond impairment, especially for frequent users.

“THC’s metabolites, in particular carboxy THC, may also be detectable in blood for several days, even in less frequent users, making them especially poor indicators of recent cannabis use or impaired performance,” Mr. Armentano wrote. “As a result, recently adopted statewide per se limits and zero tolerant per se thresholds in the United States criminally prohibiting the operation of a motor vehicle by persons with the trace presence of cannabinoids or cannabinoid metabolites in their blood or urine are not based upon scientific evidence or consensus.”

With all these uncertainties, it’s important to have an experienced lawyer if you or a loved one are facing a marijuana DUI conviction. Michelle Behan lectures frequently on topics related to all types of DUI defense, including a recent presentation to the members of Arizona Attorneys for Criminal Justice regarding marijuana and drug DUIs. Call (520) 220-5047 for a free consultation about your case, and let Miss DUI Arizona fight for you, too!