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Medical Marijuana Card Doesn’t Protect Drivers in AZ

A Medical Marijuana Card will not protect you from a DUI in Arizona. To understand why the card will not protect you, you must first understand three things: (1) Arizona Law, and; (2) the definition of a “prescription,” and; (3) the legal definition of “marijuana” in Arizona.

The Law

In Arizona, a driver can be charged with DUI/Drugs in two ways. The first way is easy enough to understand–if you are driving anywhere in the state while under the influence of marijuana and are impaired to at least the slightest degree as a result of being under the influence, you can be charged and convicted under A.R.S. §28-1381(A)(1). This law makes sense and is perfectly appropriate–although it may not be applied appropriately by police, prosecutors and the courts. But clearly if you are stoned and are a danger to yourself or others, you shouldn’t be driving.

The second way to be charged is under A.R.S. §28-1381(A)(3) which makes it illegal to drive in Arizona with a prohibited drug or metabolite as described in A.R.S. §13-3401. It does not matter whether you are under the influence or impaired. It is a strict liability offense. If you drive with one of these compounds in your body, you have committed the offense. There are, literally, hundreds of compounds that are illegal to have in your body while driving in Arizona. Some of these are completely illegal to use under any circumstances such as heroin, crack cocaine and LSD. Others are legal to use if you have a prescription such as oxycodone, codeine, or Zolpidem.

A clear defense to the charge is that the government’s blood or urine test is incorrect. However, if you actually have the drug or metabolite in your body, the only defense to A.R.S. §28-1381(A)(3) is that you have a prescription for the drug.

The Prescription

Unfortunately, in Arizona, you cannot have a prescription for medical marijuana–even if you have a medical marijuana card. Doctors in Arizona can sign off on a medical marijuana card application, which means that the patient can obtain a medical marijuana card.

Having the card allows a patient to purchase and possess medical marijuana because that patient has a doctor’s recommendation to use medical marijuana, but it is not a prescription–it is only a recommendation.

Since the defense to A.R.S. §28-1381(A)(3) is that you have a prescription for the drug, a recommendation will not suffice and it is no defense.


So, what is “marijuana”? It is a green leafy substance legally referred to as “cannibis” (see definition, below) that contains tetrahydrocannabinol (THC). THC is the psychoactive ingredient in marijuana–that’s what makes a person high. As mentioned above, it is easy to understand why we don’t want people who are high or stoned to drive if they are impaired to the slightest degree. However, the law doesn’t end there because it is equally illegal to drive with the metabolite of marijuana in your body, such as carboxy-THC.

When you ingest marijuana, the THC is metabolized as your body will metabolize most things that you ingest. When it metabolizes THC, it converts it to carboxy-THC which has absolutely no psychoactive effects. It cannot and does not impair your ability to drive. It stays in your body in detectable amounts for over 30 days. And, it is illegal to drive in Arizona with any detectable amount in your body.

In Arizona, the case of State ex rel. Montgomery v. Harris ex rel. Cnty. of Maricopa, 232 Ariz. 76, 301 P.3d 580, 583 (Ct. App. 2013) challenged whether the Arizona Medical Marijuana Act protected people from prosecution where only the metabolite, and not active THC, was found in the driver’s blood. The defense’s position was that the legislature could not have intended to include an inactive metabolite because inclusion would make no rational sense. The court concluded, however, that the card offered no protection and wrote:

“Finally, we reject Defendant’s assertion that passage of the Arizona Medical Marijuana Act (“AMMA”) provides “the best evidence of legislative intent” in construing the phrase “its metabolite.” See A.R.S. §§ 36–2801 to –2819 (2012). As an initiative measure proposed and approved by the people of Arizona, the AMMA’s adoption is immaterial to the determination of legislative intent as it relates to adoption of the DUI statutes. See Calik v. Kongable, 195 Ariz. 496, 498, ¶ 10, 990 P.2d 1055, 1057 (1999) (recognizing that initiative measures are construed to effectuate the intent of the electorate). Moreover, because this record does not implicate any aspect of the AMMA, we need not address it further.”

So–until the law changes, possession of a medical marijuana card is no defense to driving with marijuana, or any of its metabolites in your body under A.R.S. §12-1381(A)(3).

UPDATE: Good news everyone! The law has changed!  See my April 25, 2014 bolog post titled: “Driving With Marijuana Metabolite No Longer Illegal in Arizona”


A.R.S. §13-3401


A.R.S. §13-3401(4) defines cannibis as follows: “Cannabis” means the following substances under whatever names they may be designated:

(a) The resin extracted from any part of a plant of the genus cannabis, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or its resin. Cannabis does not include oil or cake made from the seeds of such plant, any fiber, compound, manufacture, salt, derivative, mixture or preparation of the mature stalks of such plant except the resin extracted from the stalks or any fiber, oil or cake or the sterilized seed of such plant which is incapable of germination.

(b) Every compound, manufacture, salt, derivative, mixture or preparation of such resin or tetrahydrocannabinol.

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James Nesci

James Nesci

James Nesci often defends cases well into the .30 blood-alcohol range. He has caught more than one police officer lying during cross-examination and some police officers have even refused to grant pretrial interviews to him without a prosecutor or their own counsel present. He was one of the lead attorneys on the Intoximeters® RBT-IV breath-testing issue in Southern Arizona which resulted in the suppression of breath tests in over 7,000 cases and the removal of the RBT-IV from the streets of Arizona. He also spear-headed the effort to obtain the manufacturer’s source code and software for the CMI Intoxilyzer 8000. Although the source code was never obtained, he almost single-handedly ground 90% of all DUI prosecutions within the City of Tucson to a halt for nearly three years and obtained breath test suppressions and dismissals in hundreds of DUI cases. In addition to “traditional” DUI cases which involve alcohol, Mr. Nesci is a recognized expert on the defense of DUI/Drugs cases. Whether they be legal-over-the-counter-medications, prescription medications or illicit drugs, such DUI cases are far more complex and present cutting-edge issues for the courts. He is qualified to administer Standardized Field Sobriety Tests under National Highway Traffic Safety Administration & International Association of Chiefs of Police Guidelines. In 2006, he was appointed Regent of the National College for DUI Defense, Inc. He was formerly the chair of the Curriculum Committee for the NCDD. Currently, he is the State Delegate Coordinator, a member of the Amicus Committee, Treasurer of the NCDD, Member of the Executive Committee and served as an oral argument judge for the Board Certification Committee. Mr. Nesci is the author of Arizona DUI Defense: The Law & Practice, a legal treatise written for DUI defense attorneys and published by Lawyers and Judges Publishing Company (now in its third edition) []. In 1999 Mr. Nesci became a Sustaining Member of the National College for DUI Defense []. In 2001, he was Board Certified by the National College for DUI Defense, Inc., which is a is recognized by the American Bar Association. He is one of only three Board Certified attorneys in the State of Arizona, and one of less than fifty Board Certified attorneys in the nation (as of January, 2012). Mr. Nesci has lectured from coast-to-coast for such organizations as The University of Arizona James E. Rogers College of Law, Arizona State University College of Law Alumni Association, University of Mississippi CLE Department, South Texas College of Law CLE Department, Arkansas Association of Criminal Defense Lawyers, Arizona Attorneys for Criminal Justice, Arizona Public Defenders Association, California Attorneys for Criminal Justice, City of Phoenix Public Defender's Office, Colorado Criminal Defense Bar, Florida Association of Criminal Defense Lawyers, Indiana Public Defender’s Council, Kansas Association of Criminal Defense Lawyers, Louisiana Association of Criminal Defense Lawyers, Maricopa County Bar Association, Maricopa County Public Defender's Office, Maryland Criminal Defense Attorneys Association, the Mexican-American Bar Association at Loyola, the National Association of Criminal Defense Lawyers, the National College for DUI Defense, the Nebraska Criminal Defense Attorney’s Association, the Nevada State Bar Association, the New York State Bar Association, the Ohio Association of Criminal Defense Lawyers, the Pima County Bar Association, the Pima County Bar Association Young Lawyer’s Division, the Texas Criminal Defense Lawyers Association, the Tucson City Public Defender’s Office, the Tulare County (California) Public Defender’s Association, the Utah Criminal Defense Lawyers Association, and the Washington Foundation for Criminal Justice. He has taught seminars on the subjects of Ethics, 4th Amendment Law, Drug Recognition Evaluations (DUI-Drugs/DRE), Cross-Examination, Trial Tactics, Jury Selection, Field Sobriety Testing, Driving Behavior, Blood Alcohol Calculations, Opening & Closing Arguments, Source Code Litigation, Frye & Daubert Challenges, Intoxilyzer 8000 Operator’s Course, Headspace Gas Chromatography, Blood and Breath Testing. He has represented former Supremes lead singer Diana Ross and Tampa Bay Buccaneers' Tight-End Jerramy Stevens on Extreme DUI charges and fitness guru Richard Simmons on an assault charge. Mr. Nesci lives in Tucson with his wife and twin daughters. He is an honorably discharged veteran of the U.S. Navy where he spent much of his time working as an electrician in the Philadelphia Naval Shipyards. His interests are traveling, fine wines, vintage port and fast cars. He is an amateur race car driver, an accomplished mechanic, and a Corvette fanatic.

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