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Is a Prescription for Marijuana Use a Defense for a DUI Charge?

Interviewer: We’ll talk about medical marijuana.

Brian: Medical marijuana is not a prescription medication. There’s an interesting concept that’s going around. I’ve subscribed to this concept where the law specifically says, as it refers to DUI’s, “That if you are taking medication that is prescribed by a doctor and you’re taking it as prescribed, that can be a defense to help to a DUI, if you were driving and had any drugs or its metabolite in your system.”

The thing about marijuana is that even though the law has passed personal marijuana usage for medical purposes, and a doctor “recommends” marijuana use, the belief has always been that marijuana is not a prescription medication.

However under Arizona revised statute 28-1381b, “A person using a drug as prescribed by medical practitioner is not guilty of violating DUI laws of having any drug or metabolite in your system.”

The statute does not say a prescription drug. The statute says a drug prescribed. Now, if you look in the dictionary, there is a difference between the definition of the word prescription, and the definition of the word prescribed. When a doctor issues a prescription, it is for a legal form of medication.

That’s why they cannot issue a prescription for cocaine. They cannot issue a prescription for PCP, for example.

Is a Prescription a Legal Authorization?

However, when a doctor makes a recommendation for marijuana, technically they are prescribing marijuana. If you look up the definition of the word prescribed, prescribed means a prescription or a recommendation.

A doctor can prescribe medication just in the same way that they can prescribe that you go home and get eight hours of sleep. They can prescribe that you eat two apples a day. They are not literally giving you a prescription apple and they are not giving you prescription sleep.

They are making a recommendation that you do something for your medical benefit. And it therefore is qualified as prescribed. It’s not prescription but it’s prescribed. There does seem to be a difference.

Under this law which is a defense to DUI, it’s arguing that there’s a difference between the word prescription and the word prescribed, the word prescription and prescribed does not show up in Arizona’s medical marijuana logs. If a doctor recommends it, then that recommendation should be fall under the definition of prescribed. This then is a valid defense is for a DUI of driving with any drug or its metabolite in your system.

Interviewer: When did you discover this? Have you brought it to bear yet in the defense?

Brian: I haven’t had the right case yet to bring it up. In talking with another attorney who is a member of the AZ DUI team. He basically enlightened me about this idea.

I was always under the impression that you can’t do anything with the marijuana as a prescription argument because it was specifically kept out from being called a prescription. After thinking about what he said, I agree with him that there is a difference between “prescription” and” prescribed.”

What Do You Receive When You Have a Medical Recommendation for Marijuana?

Interviewer: When you see a doctor, are they giving you a piece of paper that is technically not a prescription? Are they giving you a recommendation? What exactly are they giving you?

Brian: It’s not going to be on a prescription form. I believe it is going to be a letter. If there isn’t a letter, you are not allowed personal use of marijuana. It does have to be recommended by a doctor.

Usually when the issue comes up it’s always a matter of, “My friend has prescription marijuana and he just shared.” Or “I have a prescription marijuana card but I got it after I was arrested for DUI.” Or “I had a prescription marijuana card but it expired.” I haven’t quite had the right case yet in which to debut this defense.

By Brian Douglas Sloan

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Brian Douglas Sloan


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Why DUI Attorney Brian Douglas Sloan?


19+ Years SOLELY Focused on DUI Defense


4,200+ DUIs Successfully Defended

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  • Only DUI "Power Lawyer" in the Nation Featured in USA Today, 2022

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“I am one of only a handful of Phoenix DUI Lawyers that focuses solely on DUI Defense representation.”

I have spent my entire career SOLELY focused on Arizona DUI Defense Representation, having personally defended more than 4,400 Driving Under the Influence (DUI) clients in the past 19+ years.

If you’re looking for a Divorce Attorney, Tax Attorney, Civil Attorney, etc., I can comfortably say, "I’m not the one for you." I ONLY defend DUI cases in most of Maricopa County, Arizona.

Coming up with traditional, as well as outside-the-box motions and defenses for my clients, often with good results, is the hallmark of my practice.

Lawyers that say they are "aggressive" or "will fight for you" are a dime a dozen. They use these phrases because it is a proven advertising phrase. Being "aggressive" isn’t the same as being good, and is often used to put on a show to hide the fact that they aren’t doing anything meaningful for the client.

The same is true for the Lawyers claiming to do DUI Defense, and Criminal Cases, and Accident Cases, and Divorces, etc. A Jack-of-all-Trades is a master of none! By handling all sorts of cases, they take away from their ability to truly focus on DUIs, and keep up-to-date on the latest changes in DUI Defense Representation.

What I offer is intelligent, quality DUI Defense at an exceptional price. Unlike many other law firms, if you hire The Law Offices of Brian D. Sloan, you actually get me representing you, doing all the work, and working the case. You aren’t hiring one guy with all the experience, but getting the underling with very little knowledge or experience.

I work seven days a week on my client’s cases, and spend hours laying all my thoughts out for my clients in writing, so they can understand their options, and my recommendations. No other DUI Lawyer in the state does this. I try to do what I can to go above-and-beyond for my clients. I hate when the businesses I deal with nickel-and-dime me with hidden costs, and I take pride in not doing that to my clients.

I have not only taught other lawyers how to do DUI Defense Representation at statewide seminars, but I have produced DUI Legal Guides used by defense lawyers across Arizona.

I am one of Arizona's most award-winning DUI Defense Lawyers, as well as being recognized nationally. I was the only DUI Defense Lawyer in the United States named a "Power Lawyer" in a 2022 issue of USA Today

There are no other private Lawyers in Arizona that have personally defended more DUI cases than I have. And as a bonus, I offer a very reasonable flat rate for my legal services, with a payment plan, and without any hidden charges. This guarantees that I offer some of the most competitive rates among all Arizona DUI Attorneys, while being a well-documented and preeminent leader in the field of DUI Defense Representation.

Over the years, countless people have come to me after discovering that their first lawyer made a mistake, gave them false hope or false promises, or simply took their money and didn't do much to advance their case. And you would be surprised at how often this happens.

So, instead of wasting time and money on the wrong DUI Defense Attorney, do yourself a favor and get the proven and well-recognized best DUI Lawyer in Phoenix and the surrounding areas of Maricopa County.

You can reach me on my personal cell phone at 480-720-7839 for a Free ‘In Depth’ Consultation.

I personally defend DUI cases in urban Maricopa County City, Town, and Justice Courts, including:

Ahwatukee / Agua Fria / Arcadia Biltmore / Avondale / Buckeye / Chandler / Country Meadows / Desert Ridge / Dreamy Draw / Downtown / East Mesa / El Centro / Encanto / Gilbert / Glendale / Goodyear / Guadalupe / Highland / Kyrene / Litchfield Park / Maryvale / McDowell Mountain / Mesa / Moon Valley / North Mesa / Peoria / Phoenix / Queen Creek / San Marcos / San Tan / South Mountain / Scottsdale / Tempe / University Lakes / West McDowell / West Mesa / White Tank

For any other Courts in the State of Arizona, including Felony cases, I would recommend my associates on The Arizona DUI Team, whom I work closely with, but I am not the one personally representing the client.

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Brian Douglas Sloan

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