On December 22, 2016, in a divided 2-1 decision, in Ishak v. McClennen, No. 1 CA-SA 16-0134 (12/22/16) Division One of the Arizona Court of Appeals held that for Medical Marijuana DUI cases in which the defendant wishes to have the jury instructed on the Arizona Medical Marijuana Act (AMMA) Cardholder affirmative defense, the issue is the possible level of marijuana in the body which would cause impairment of that particular defendant and not a theoretical level of marijuana which would cause impairment of all persons. The court further held an AMMA Cardholder defendant does not have to present expert witness testimony about levels of marijuana causing impairment but rather can rely on cross-examination of the State’s witnesses and the defendant’s own testimony that they were not impaired.
The defendant was charged in the Mesa Municipal Court with violations of 28 A.R.S. § 1381.A.1 Driving Under the Influence and 28 A.R.S. § 1381.A.3, Driving with a Controlled Substance in the Body, the substance being Marijuana. The defendant was an AMMA Cardholder.
The case was tried in a jury trial prior to the Arizona Supreme Court’s decision in Dobson v. McClennen, 238 Ariz. 389, which established an affirmative defense for AMMA Cardholders to the 28 A.R.S. § 1381.A.3, Driving with a Controlled Substance in the Body charge. In the Dobson case the Supreme Court said AMMA Cardholders have an affirmative defense if they can show the concentration of THC (the active ingredient of marijuana) in their body was below a level which would cause impairment. Left unsaid in the Dobson case is, whether the THC level at issue is a level of impairment for all persons or the level which would case impairment for the particular AMMA Cardholder defendant only. This is an important distinction because the experts say there is no consensus opinion in the scientific community as to what is a level of THC which would cause impairment in all people.
An affirmative defense is one which the defendant must prove by the standard of a preponderance of evidence, which means more likely than not. If the AMMA Cardholder defendant presents sufficient evidence in support of an affirmative defense then the trial judge must instruct the jury about the AMMA Cardholder affirmative defense.
The practical problem for AMMA cardholders who want to use this defense is they must present evidence in support of the defense and not just simply argue the State has not met its burden of proof. If to prove the AMMA Cardholder affirmative the defense must show their level of THC was below a level which would cause impairment in all people, and scientifically there is no such level, they could never meet their burden of proof no matter how low the THC is in their body. So if to prevail with the affirmative defense the AMMA Cardholder had to prove something which is impossible to prove then all AMMA Cardholders with any THC in their bodies would automatically be guilty of the 28 A.R.S. § 1381.A.3, Driving with a Controlled Substance in the Body charge, even if they were not impaired.
Prior to the jury trial in Ishak the State made a motion to preclude the AMMA Cardholder defendant from telling the jury he had a medical marijuana card, which the judge granted by saying the card (and the AMMA Cardholder Affirmative Defense) was not relevant to any issue in the trial.
During the trial the defendant’s attorney vigorously cross-examined the arresting officer’s testimony regarding the defendant’s appearance and performance as it related to possible impairment. The State called an expert who testified that a sample of the defendant’s blood taken after the stop contained a concentration of 26.9 ng/ml of the marijuana metabolite THC. The court prevented that expert from testifying those results showed a THC level “that causes impairment in the person.”
The defendant also called an expert witness who said there “is no consensus” about the concentration of THC that causes impairment. As for the reading of 26.9 ng/ml, the defendant’s expert testified, “It’s a high number and it can impair some people, but I can’t tell you that number . . . will impair all people.”
The jury found the defendant not guilty of 28 A.R.S. § 1381.A.1 Driving Under the Influence and guilty of 28 A.R.S. § 1381.A.3, Driving with a Controlled Substance in the Body. The defendant then filed an appeal.
The court of appeals held that in light of the Dobson case it was error not to have allowed the defendant to present evidence that he was an AMMA Cardholder. The court also held the defendant could establish the AMMA Cardholder affirmative defense by showing he was not impaired and below the level of THC which would impair him individually, and the defendant need not prove he was below a universal level which would cause impairment in all people. The court said that a defendant was not required to call an expert witness in support of his defense but rather could, as he did, rely on cross-examination of the State’s witnesses.
In the Dobson case the Supreme Court established the existence of the AMMA Cardholder affirmative defense but refused to reverse the conviction because from the evidence produced at trial, the defendant had failed to show that had he been allowed to present the AMMA Cardholder affirmative defense to the jury they would have found him not guilty. In Ishak the court of appeals said the defendant had presented sufficient evidence at the jury trial so that a jury could have found him not guilty of 28 A.R.S. § 1381.A.3, Driving with a Controlled Substance in the Body, if the Judge had properly instructed the jury about the AMMA Cardholder affirmative defense. The court of appeals therefore vacated the conviction for the 28 A.R.S. § 1381.A.3, Driving with a Controlled Substance in the Body charge and sent the case back to the Mesa Municipal Court for another trial.
The dissenting judge in Ishak agreed with the majority decision that it was error not to have instructed the jury about the AMMA Cardholder affirmative defense. The dissent said however that to use the AMMA Cardholder affirmative defense the defendant had to have presented expert testimony to show his THC level was below a level which would cause impairment and therefore in the absence of such evidence there was insufficient evidence to say the jury could have found him not guilty The dissenting judge therefore voted to sustain the conviction.
The case may be found online at:
http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2016/1%20CA-SA%2016-0134.pdf
Gordon Thompson
For more information about Arizona dui and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions. Website: https://GordonThompsonAttorney.net
