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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Why Attorney Brian Douglas Sloan?


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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 focused on DUI Defense representation, having personally defended more than 4,100+ DUI clients in the past 18+ years.

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