Interviewer: That law makes absolutely no sense.
Brian: Exactly. That’s why it is important to have an attorney. The ignition interlock device only tests for alcohol, it has nothing to do with drugs, illegal or legal.
Arizona law requires an interlock device on any vehicle if the driver is convicted of a DUI unless you know what you’re doing and how to ask to successfully to prevent an ignition interlock device from being ordered.
Interviewer: If you know someone who uses medical marijuana, do they need to report that to anyone? Or does having a card a become liability to you because it can show up in public record and be used against you?
Brian: There has to be some evident of marijuana use to warrant a charge. Simply having a card that allows you to use medical marijuana isn’t going to be enough. The prosecutor has to prove that is was present in your system.
Possession of a Medical Marijuana Card Will Not Result in a Count Two Charge
They do that by way of a blood test or urine test. Possessing a medical marijuana card, even though there are issues with medical marijuana being “recommended” and not prescribed many times a prosecutor’s office will determine that is do not warrant a charge count two–that you were driving while you had any drug or its metabolite in your system.
I think they realize that this is an issue with the law. They do realize that it is unfair to have the state of Arizona and a doctor recommend that you take medical marijuana for medical reasons and then charge someone for simply having it present in their system.
I think that’s an ethical issue for the prosecutor. Some prosecutors won’t charge it, others will but you still have to deal with the issue of impairment.
Interviewer: If you’re involved in a traffic stop and you have a medical marijuana card and the police see it or you give it to them, would that give them probably cause to draw your blood?
Brian: It shouldn’t but the officers know what they are doing and they know to say, “Well, I noticed blood shot, watery eyes, well, the person admitted to smoking marijuana an hour earlier.” They’ll find a way to obtain blood.
Possession of a Medical Marijuana Card Is Not Adequate to Establish Probable Cause
But simply because the person has a medical marijuana card on them is not probable cause to believe that they have consumed marijuana nor that they have used marijuana so they would not be able to get access to the blood or urine.
For example, before the medical marijuana laws came into effect I had a client who was pulled over and they discovered that he had marijuana in his backpack.
After discovering marijuana in his backpack, the officers decided to draw his blood, figuring that if he has marijuana in his backpack he must have ingested marijuana.
We were right on the verge of getting that blood test result suppressed because there is no reason to believe that simply because one has it in a backpack that they have it in their system. It’s the same thing with the medical marijuana card.
If you have a medical marijuana card, without more evidence, the simple possession does not indicate that someone has marijuana in his or her system or that they are under the influence of marijuana.
Interviewer: Is it the same as if someone went to a smoke shop it, doesn’t mean that they used any of the products inside of the shop in an illegal way?
Brian: It is the same analogy: Simply someone walking into a bar doesn’t mean that they are coming out drunk.