Marijuana DUI Burden of Proof on the Court


Arizona medical marijuana patients have officially been given more defense options when being arrested and charged with a marijuana DUI. The Arizona State Court of Appeals ruled that sufficient evidence must be presented to prove that a patient is in fact impaired, regardless of the quantity of THC found in the person’s body. Unlike other places around the country, the state currently does not have a law specifying what amount constitutes impairment.

Issues with Charges Based on Blood Results Alone

blood test deemed an insufficient indicator for arizona marijuana dui
Blood alone was deemed unsuitable proof for a DUI conviction.

Given that the plant affects everyone differently (it can stay in the system long after consumption and impairment and heavy users may have a higher THC blood level and not be impaired at all), the appellate Judge Diane Johnsen was not comfortable charging a person based on blood results alone. She has made it clear that the court must prove that the amount of marijuana in a person’s body is enough to make them impaired. Defendants can call on witnesses and experts, as well as give their own testimony.

The Case of Nadir Ishak

The ruling came after Nadir Ishak appealed a conviction for having marijuana in his body. He was picked up in Mesa in 2013 by an officer after being seen drifting into another lane. According to the officer, Ishak’s eyes were bloodshot and he was exhibiting body and eye tremors during testing.  The officer charged Ishak with driving while impaired to the slightest degree and driving with marijuana in the body. He was acquitted for the charge of driving under the influence but convicted for having marijuana in the blood.

Marijuana DUI for Medical Cardholders

court provide proof charging medical marijuana cardholder dui arizona
The court must provide proof against a medical marijuana cardholder charged with DUI in Arizona.

Johnsen stated that Ishak’s marijuana DUI trial was not a fair one due to the fact that the city court judge did not allow Ishak to tell jurors that he had a state-issued medical marijuana card which allowed him to legally use marijuana as a patient. This would mean that under the 2010 Arizona Medical Marijuana Act, he would legally be allowed to have marijuana in his system, making the conviction completely redundant. According to the law, a patient can’t be presumed to be under the influence “solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.”

A System Lacking a Limit

Arizona does not have a legal limit established for impairment, unlike Colorado which has a 5 nanogram limit. Ishak had 26.9 nanograms of THC in his system. His expert testified that while this amount can be considered high, there is no actual concentration that is considered to impair people equally down the line. While that number could be considered high and impair some people, it may not impair “all people” especially heavy users and, therefore, there is no way to prove that it would cause impairment in Ishak.

The ruling is a step forward for many faced with marijuana DUI charges who were convicted based on blood levels alone. The system is still not perfect. Patients still need to face the threat of being arrested and sometimes incarcerated, not to mention the high lawyer’s fees, but at least it’s a step forward. No doubt in time, the testing process will improve.


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