Prop 207, Arizona DUI and Marijuana

Marijuana Leaves

On November 30, 2020 Arizona Elections Proposition 207 (Prop 207), which legalizes the personal possession of Marijuana, took effect.  Prop 207 significantly changes the DUI laws for defendants who have Marijuana in their bodies.

Arizona’s basic DUI law, 28 A.R.S. § 1381.A.1, makes it illegal to drive or be in actual physical control, “While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree by alcohol, drugs or any combination thereof.“ That statute remains unchanged.

28 A.R.S. § 1381.A.3, makes it illegal to drive or be in actual physical control, “While there is any drug defined in section 13-3401 or its metabolite in the person’s body.” Marijuana and its active metabolite, THC, are drugs defined in section 13 A.R.S. § 3401.4.  An active metabolite is one where the substance is capable of affecting the body, whereas an inactive metabolite is one which is still present within the body but is no longer capable of affecting the body.  The Arizona Supreme Court has interpreted 28 A.R.S. § 1381.A.3 to require the presence of an active metabolite of Marijuana (THC) and not just an inactive metabolite, before a defendant can be found guilty.  Therefore prior to November 30, 2020 a defendant was guilty of Driving Impaired if they had any THC in their body.

For Medical Marijuana Card holders however, who had active THC in their bodies there was and still is an affirmative defense to 28 A.R.S. § 1381.A.3.  A Medical Marijuana Card holder is not guilty if they can affirmatively show by the standard of proof of a preponderance of the evidence (more likely than not) that the level of THC in their body was below the level which would cause impairment.  The defendant can meet this affirmative defense duty by testifying they were below this level.

Prop 207 significantly changes 28 A.R.S. § 1381.A.3.  Prop 207 adds a new statute, 36 A.R.S. § 2852. B, which says, “Notwithstanding any other law, a person with metabolites or components of marijuana in the person’s body is guilty of violating section 28-1381, subsection A, paragraph 3 only if the person is also impaired to the slightest degree.”  What this new subsection means is the mere presence of active THC in a defendant’s body while driving or being in actual physical control of a motor vehicle is no longer a crime.  This is true whether the defendant is a Medical Marijuana Card holder or not. What this means is, for 28 A.R.S. § 1381.A.3, the State must prove beyond a reasonable doubt that the defendant is impaired to the slightest degree by THC and so the defendant has the burden of proving they are not impaired.  The issues under both 28 A.R.S. § 1381.A.1 and 28 A.R.S. § 1381.A.3, are exactly the same, is the defendant beyond a reasonable doubt impaired by active THC.  Legally the two charges are multiplicitous, meaning they are same thing, and under the law a person can only be found guilty and be sentenced for one charge.  Therefore, it is likely the State will now only file 28 A.R.S. § 1381.A.1 charges because being found guilty of both is meaningless.


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.