Facts of the Case

In 2013, the defendant in this case and one of his acquaintances were driving one night when a police officer stopped them and began questioning them about where they were headed. Upon further investigation, the officer discovered marijuana in the car, and he learned that the defendant was going to California to buy more marijuana. The officer arrested both the defendant and his acquaintance.

The defendant was charged and convicted of conspiracy to transport marijuana for sale, and he finished the terms of his parole in 2018. In 2022, the defendant filed a petition to expunge, or remove, the conviction from his record. The trial court denied that petition and the defendant promptly appealed.

more The Decision

The lower court’s reason for denying the defendant’s petition was based on a newly enacted statute in Arizona, ARS 13-911. This statute allows for individuals to have their records expunged if they meet certain criteria. Here, the lower court focused on the fact that the defendant was convicted of a marijuana offense that involved “for sale” marijuana. The newly enacted law allowing the defendant to petition for expungement, said the court, did not apply to “for sale” offenses; it only allowed those defendants convicted of recreational marijuana offenses to receive a chance at expungement.

On appeal, however, the higher court reviewed a recent appellate decision that we covered on our blog last month. In this important decision, the court decided that “for sale” offenses are actually eligible for expungement. Because the statute allows defendants convicted of both recreational offenses and “for sale” offenses to petition for expungement, the defendant was right to ask for his record to be cleared.

Therefore, the court reversed the trial court’s decision, ruling that the marijuana conviction would be wiped from the defendant’s record. As a result, the defendant’s record will be wiped clean of his prior marijuana-related conviction.

Are You on the Lookout for an Arizona Criminal Defense Attorney?

The legal landscape in Arizona can be tough to navigate, but with the right attorneys by your side, you can make sure your rights are well protected. At the Law Office of James E. Novak, we work hard for our clients because we know how much it can make a difference to have an expert in your corner. If you are facing criminal charges in Arizona and you need legal representation, call us today for a free and confidential consultation at (480) 413-1499. You can also fill out our online form to tell us about your case.

Facts of the Case

According to the opinion, the defendant pled guilty in 2017 to two counts of sex trafficking. When the defendant and the State were negotiating his plea deal, the defendant admitted that he had seven previous felony convictions on his record – one of these offenses was possession of marijuana in 2004. Because of the combination of these previous convictions and the 2017 convictions, the defendant was sentenced to 12 years in prison.

In 2020, however, Arizona voted to legalize marijuana for recreational use. As part of that new law, adults that had been previously convicted of marijuana use could be eligible to have those convictions removed from their records. Here, the defendant filed a petition before the court after this 2020 law passed, arguing that his 2004 marijuana conviction should be vacated. If the 2004 conviction were removed, he argued, the defendant’s overall sentence would be less than the 12 years he received.

The court of appeals reviewed the defendant’s appeal in light of the 2020 law that was passed.

The Decision

In looking at the facts of the case, the court ultimately decided that the defendant’s marijuana conviction was, indeed, eligible for expungement. Because that conviction could be wiped from the defendant’s record, the basis of the 2017 plea deal was now different.

The defendant’s plea deal specifically mentioned his 2004 marijuana conviction, and without this conviction, the terms of the plea were no longer intact. Thus, said the court, the rational thing to do would be to vacate the plea agreement and remand the case back to the trial court so it could determine how long the defendant should be incarcerated. The defendant’s recalculated sentence, said the higher court, will likely be lower than it had been in 2017.

Are You In Need of a Criminal Defense Attorney in Arizona?

If you or a loved one is facing drug charges in Arizona, give the Law Office of James E. Novak a call so that we can help you figure out how to move forward. When there is so much on the line, you want to make sure you have the right people in your corner – at our office, we take pride in offering diligent, strategic, aggressive representation so that you can rest easy, knowing your case is being handled by the best. For a free and confidential consultation, call us today at 480-413-1499.

Facts of the Case

According to the opinion, the defendant was driving between seventy and ninety-five miles per hour in a forty-five miles per hour zone. While going at this speed, the defendant struck another car, causing the two passengers of that second car to be ejected from the vehicle. The second car’s driver was a man and the passenger was his seven-month-old son. Neither passenger was wearing a seatbelt, and the father had THC in his system at the time of the crash. Tragically, the seven-month-old son died as a result of the crash.

The father pled guilty to driving under the influence and endangerment after the crash. The main defense raised by the defendant was that he alone was not responsible for the injuries – it was true, said the defendant, that he was speeding, but the father was also under the influence and without a seatbelt at the time of the crash. Thus, according to the defendant, he could not take all of the blame.

more The Decision

The court considered this argument, that the father’s drug use and lack of a seatbelt could have also been causes of the crash. The court noted that sometimes juries receive what is called a “superseding cause” instruction. This means that the judge instructs juries to consider that another person’s actions have intervened and caused the accident in question. Occasionally, if a jury decides that this other person’s actions were a significant factor in the accident, the defendant can avoid liability.

In this case, said the higher court, a superseding cause instruction was not appropriate. The defendant’s excessive speeding occurred at the same time as the father’s failure to use a seatbelt and drug use. For the superseding cause instruction to apply, the father’s actions would have to have occurred after the defendant’s speeding. Arizona law is clear that the superseding cause instruction only applies when the two actions do not occur at the same time.

The defendant’s excessive speeding continued up to the time that the seven-month-old child was thrown from the car. Thus the speeding worked together with the lack of seatbelts to cause the injuries. Because the father’s occurred simultaneously with the speeding, the superseding cause instruction was not appropriate.

However, the court of appeals still vacated the defendant’s conviction on a more technical issue. The court disapproved of the fact that the lower court made a decision on this superseding cause instruction without first establishing whether the two actions occurred at different times or at the same time. It is necessary for Arizona courts to first determine the timeline of events before deciding if a superseding cause instruction is appropriate. Because the lower court failed to make this analysis, the higher court determined that the order should be vacated. The defendant’s appeal was thus successful.

Are You Facing Criminal Charges After a Car Accident in Arizona?

If you are defending yourself against Arizona DUI charges that have resulted from a car accident, give us a call at the Law Office of James E. Novak. We know the law and remain committed to using our expertise to make sure your voice is heard. For a free consultation, call us at 480-413-1499.

Changes Based on Proposition 207

Historically in Arizona, defendants charged with DUIs have faced a tough legal landscape when it comes to marijuana. Before the passage of Proposition 207, prosecutors did not need to prove that defendants charged with a DUI were impaired to drive – they only needed to show that there was any amount of drugs in the defendant’s body. Under Proposition 207, the situation has changed: now, you cannot be found guilty of a marijuana DUI unless you are “impaired to the slightest degree.” This means that prosecutors now have to prove both that you were under the influence of marijuana and that you were “impaired to the slightest degree” while driving. This added element makes it more difficult for prosecutors to prove their cases. It is important to note that these elements for a DUI case are the same whether or not a defendant has an Arizona medical marijuana card.

Proposition 207 also changes how police officers in Arizona can investigate crimes. Before the passage of the law, officers could use the smell of burnt marijuana as evidence of a crime. Now, however, the smell of burnt marijuana no longer serves as sufficient reason for an officer to infer criminal conduct. There is one important exception to this rule: if an officer believes that a driver is under the influence because that driver commits a traffic offense, the officer can still rely on the smell of burnt marijuana to make an arrest. Under other circumstances, though, because of changes enacted under Proposition 207, the smell of burnt marijuana cannot serve as grounds for an officer to make an arrest in Arizona.

more Sentencing Under Proposition 207 Remains the Same

New Arizona DUI laws do not affect the severity of defendants’ sentences in the State. For example, a Phoenix DUI conviction carries up to ten days in jail and five years of probation. Speaking with a criminal defense attorney is critical for those charged with a marijuana DUI in Arizona – it is important to investigate all possible defenses to make sure officers are not making arrests without just cause.

Have You Been Charged with Marijuana Possession in Arizona?

If you or a loved one have been arrested for marijuana charges in Arizona, there are defenses that might be available to help fight your case. Because of recent changes to marijuana DUI laws in Arizona, it will be extremely helpful to have a knowledgeable criminal defense attorney who can walk you through your options and dedicate himself to advocating on your behalf. At the Law Office of James E. Novak, we have defended and litigated criminal cases of all sizes, and we are eager to learn how we can help you make sure your voice is heard. To learn more or to schedule a free and confidential consultation, call us at 480-413-1499.

In Arizona, the State can charge and prosecute individuals for DUI drugs under two main statutes, ARS §28-1381(A)(1) and ARS §28-1381(A)(3). Under the first statute, it is illegal for an individual to operate a motor vehicle while under the influence of any alcohol, drug or inhalant. A charge under this statute may occur when the motorist is impaired to the “slightest degree.” The second statute provides that it is illegal for one to drive a motorized vehicle under the influence of any drug or its metabolite. This statute encompasses substances such as marijuana, heroin, cocaine, and prescription medications being used illegally. Under the statute, a person does not need to exhibit actual impairment; instead, they may be guilty by solely having the drug or its metabolite in their system.

Although marijuana and its THC component are legal to use recreationally, issues may arise if the person exhibits even slight impairment. Arizonans may not need to present a medical marijuana card to defend themselves against certain DUI charges, but they may still face impairment charges. Many charges stemming from marijuana DUIs may hinge on whether someone is too impaired or high to drive. Issues often arise because, unlike alcohol, marijuana requires a blood test. However, where alcohol tends to metabolize quickly and goes away within a matter of hours, marijuana and its accompanying THC may remain in one’s system for days after the effects have dissipated.

Those who have been charged with marijuana-related DUI should contact an attorney to discuss their rights and remedies. The ever-evolving legal landscape regarding Arizona marijuana-related DUIs requires defendants to present compelling evidence and a legally sound defense.

Have You Been Charged with a Drug-Related DUI?

If you or someone you know faces Arizona DUI charges, contact the Law Office of James E. Novak. Attorney Novak is a premier Arizona DUI and criminal defense attorney who has successfully represented clients in some of the most complex cases. For nearly 20 years, Attorney Novak has been defending those charged with various Arizona criminal offenses. In addition to drunk and drugged driving offenses, he handles cases involving drugs and narcotics, vehicular crimes, property crimes, sexual offenses, probation violations, felony offenses, and warrants. He maintains an active practice, ensuring that each client and case receives individualized attention and strategic case preparation. As the law continues to change, it is essential that you contact Attorney Novak to discuss your defense. Contact the Law Office of James E. Novak at 480-413-1499 to schedule a free initial consultation.

Under the new ballot initiative, recreational marijuana would be legalized for adults over the age of 21. The law would regulate where cannabis could be smoked, and also continues to make it illegal to operate a vehicle, boat, or airplane while “impaired even to the slightest degree.”

How the criminal justice system answers the question of when someone is “impaired” by marijuana is going to be critical to the fair enforcement of the state’s DUI laws. Even for a casual smoker, marijuana can stay in their system for weeks after use. However, any mind-altering effects of the drug wear off after just a few hours. Thus, it is possible that someone could smoke marijuana at night, get up to go to work, get pulled over on the way for an unrelated traffic offense, and be arrested for DUI. Certainly, this is not the intent of lawmakers who hoped to allow the responsible use of marijuana and only criminalize those who drive while actually impaired.

Other states that have legalized marijuana have faced similar issues. Typically, the way this is handled is by looking at the levels of an intoxicated person’s active and inactive metabolites. When marijuana is consumed, the body metabolizes the drug. As a result of the metabolization process, certain active and inactive chemicals, or metabolites, are released into the body. Many of these chemicals have no intoxicating effect; however, they can result in a positive drug screen. The active metabolites, which are responsible for the “high” associated with marijuana use, break down in a number of hours after marijuana use.

When someone is given a drug test, the results will display the levels of both the active and inactive metabolites. It used to be that someone could be convicted of a DUI with any marijuana metabolite in their system; however, Arizona courts rejected that approach. Currently, someone cannot be convicted of DUI “based merely on the presence of a non-impairing metabolite that may reflect the prior usage of marijuana.”

Have You Been Arrested for an Arizona DUI?

If you have recently been arrested and charged with an Arizona DUI, contact Attorney James E. Novak to discuss your case. Attorney Novak is a preeminent Tempe DUI attorney with extensive experience handling Arizona marijuana DUI cases. Having handled thousands of DUI cases over his career, Attorney Novak understands the technical and scientific aspects of DUI law, and puts this advanced knowledge to use for his clients. He is also well-versed in Arizona search-and-seizure law, which enables him to suppress chemical test results in many cases. To learn more, and to schedule a free consultation, call 480-413-1499.

Additional Resources:

• A.R.S. 28-1381 – DUI Laws
• A.R.S. 28-1388 –Blood and Breath Tests

We’d like to consider some of the financial penalties associated with marijuana DUI charges so you understand the difficulties ahead. It will reinforce the importance of having a skilled lawyer by your side to help reduce or drop the charges against you.

Arizona Laws on Driving Under the Influence of Marijuana

The state of Arizona prohibits people from driving a vehicle if they are under the influence of any sort of drug. This includes people who are licensed to use medical marijuana to treat a health condition.

Keep in mind that the presence of metabolites (the residue in the bloodstream after marijuana use) does not necessarily mean you were using marijuana while behind the wheel. Metabolites can stay in your blood for weeks, meaning you may be charged with marijuana DUI even though you were not under the influence of the drug for some time.

Financial Penalties for First Offense Marijuana DUI

The financial penalties for a first-time marijuana DUI will include a fine that starts at $1,250. This is on top of jail time, license suspension, probation, and community service.

Financial Penalties for Second Offense Marijuana DUI

If you have another marijuana DUI within 7 years of the first offense, you will face harsher penalties. The financial penalties for second offense DUI include a minimum fine of $3,000. Jail time, license suspension, enrollment in a drug treatment program, and other penalties also apply.

Financial Penalties for Third Offense Marijuana DUI

If there is a third marijuana DUI within 7 years of previous offenses, the driver will face the harshest penalties yet. Fines for a third offense marijuana DUI can be as steep as $150,000. This is on top of prison time, probation, and forfeiture of your vehicle.

Marijuana Possession and DUI

If you are pulled over for driving under the influence of marijuana, additional charges may be filed if you are found in possession of marijuana. Marijuana possession is a felony in the state of Arizona.

The severity of your possession charges will depend on how much marijuana you have on you at the time. Having just small amounts of marijuana on your person will typically result in a misdemeanor charge rather than a felony. The most severe charges are given to those who are in possession of more than two pounds of marijuana. The financial penalties for marijuana possession can vary depending on the amount on your person at the time of arrest.

Additional Penalties to Keep in Mind

In addition to possession and multiple marijuana DUI offenses, additional penalties may apply depending on the nature of your driving infraction. For instance, harsher penalties will be levied against you if you have a passenger in your vehicle who is 15 years old or younger. Causing vehicle damage or injury to others will similarly result in harsher penalties.

Learn More About Your Legal Rights

If you have been arrested for driving while under the influence of marijuana, it’s important that you contact an experienced marijuana DUI defense lawyer. We at the Law Office of James Novak, PLLC will help you in your time of legal need, offering expert legal counsel on your options.

While some people may legally obtain and use marijuana in the state, Arizona still does not have a proper means of testing for pot in a driver’s system. The entire country is struggling with this issue. Marijuana DUI law is still evolving given the country’s changing attitudes toward marijuana. With that in mind, our legal office serving the Phoenix, AZ area would like to consider some of the current issues related to field sobriety tests to detect marijuana use.

About Field Sobriety Tests

A field sobriety test is a way for law enforcement to assess the motor skills and decision-making skills of a driver who is suspected to be under the influence of a controlled substance.

The nature of these tests can vary, but they generally involve:

• Demonstrations of balance, such as standing on one leg or walking a straight line
• Demonstrations of basic coordination and motor skills, such as touching one’s nose
• Assessment of mental state, such as reciting the alphabet and simple information
• Checking the tracking ability of the eyes

Can Field Sobriety Tests Detect Marijuana Use?

No.

There are many problems with field sobriety tests even when trying to determine if a person has been drinking. The effects of marijuana can vary from person to person. Additionally, field sobriety tests are unscientific, and the nervousness of a traffic stop and other factors may contribute to poor performance of simple tasks.

Simply put, field sobriety tests are not a reliable way for law enforcement to determine if a driver has been using marijuana.

Stories in the News About Marijuana Sobriety Testing

These assertions are backed up by stories in the news.

In the state of Massachusetts, for instance the Supreme Judicial Court ruled that field sobriety tests cannot be used as concrete evidence against a driver who is suspected to have been driving under the influence of marijuana.

Law Enforcement Doesn’t Have Reliable Marijuana Testing

While some law enforcement is using special swabs to detect the presence of THC in a person’s saliva, the accuracy of these tests is still up for debate. Blood tests can measure the amount of THC in someone’s system, but again, marijuana can affect people in different ways. Someone may have more than 5 nanograms of THC in their system but function completely normally without any impairment. By contrast, someone with that much THC in their system may not be able to operate a vehicle safely.

How an Attorney Can Help You

At the moment, scientists are still working out a reliable form of testing that is accurate for marijuana DUI cases that also take into account actual impairment. Research is ongoing.

Because of these facts, it’s important to have an attorney on your side who understands the limits and inaccuracies of field sobriety tests when it comes to marijuana DUI cases.

Contact an Experienced Marijuana DUI Lawyer

For more information about your legal rights and options following an arrest for driving under the influence of marijuana, be sure to contact the Law Office of James Novak. We will fight diligently for you during your time of legal need.

For example, a ballot initiative involving recreational marijuana use may have a major impact on motorists who are pulled over with THC in their system. Let’s look a the basics of the new law and then see how it can impact DUI cases.

Background on the Recreational Marijuana Use Ballot Measure

Marijuana legalization has been a major issue for many years, and Arizona may have an opportunity to vote on it come November.

A ballot initiative that would legalize marijuana for recreational use received enough popular support to be voted on by the people. The Campaign to Regulate Marijuana Like Alcohol (CRMLA) collected 258,582 petition signatures and submitted them to the Arizona Secretary of State. If at least 150,642 of those signatures can be verified, the measure will be on November’s ballot.

People in support of legalization say that millions in revenue can be generated each year thanks to a 15% sales tax on marijuana products, as well as fees related to licensing and regulation.

Where’s the Legal Limit: An Issue of Measuring Intoxication

While the measure sounds like it will have many benefits, there’s a problem of measuring intoxication when someone is driving.

Anyone aged 21 or older will be allowed to use marijuana under the initiative, but there is no wording related to marijuana DUI. While the legal limit for alcohol is a BAC of 0.08, the vagueness of the laws may allow any amount of THC in a person’s system to count as intoxication.

Measuring Impairment Should Be Objective Rather Than a Judgment Call

If one wants t regulate marijuana like alcohol as the CRMLA name suggests, more specific language needs to be considered when it comes to DUI charges for marijuana. The state of Colorado, which has been a trailblazer with regard to legal marijuana use, specifies a level limit of 5 nanograms of THC.

By specifying an amount like 5 nanograms in the wording of legislation, the state of Arizona can take a smart step forward in marijuana legalization and enforcement of smart laws that keep people safe. It’s better to specify something rather than relying on arbitrary judgment calls from law enforcement. Everyone can thus be treated fairly under the law.

Keeping an Eye on the Vote in November

We’ll keep an eye on the recreational marijuana use initiative as November approaches, and we’ll monitor various news regarding legalization, enforcement, and other topics that may be of interest to clients and people interested in the proper rule and enforcement of the law.

As more information becomes available and as the conversation continues to evolve, we will be sure to discuss these matters on the blog to keep you up to date.

Contact Our Law Firm About DUI and Marijuana Charges

To learn more about your legal rights and options regarding drunk driving charges and marijuana charges, it’s important that you contact our team of DUI and marijuana law experts today. We at The Law Office of James Novak are here to help you in your time of legal need.

At The Law Office of James Novak, we are committed to helping the people of Phoenix get a fair shake from the law. We offer drunk driving and drug DUI defense, and want to make sure the system is fair rather than stacked against the people. There are many factors to consider when it comes to marijuana penalties during a DUI arrest. Let’s cover some of the basics so you understand how serious these cases can be.

Marijuana Possession Penalties

If you are found in the possession of marijuana for personal use (i.e., less than 2 lbs), you may be charged with a felony or misdemeanor. The penalties can range a great depending on the nature of the case, but you may incarcerated anywhere between 6 months to 18 months and face fines ranging from $750 to $150,000.

If you are found in the possession of marijuana with an intent to sell or distribute the marijuana, you will likely be charged with a Class 4 Felony. Penalties include incarceration for 1 to 4 years as well as fines up to $150,000.

First Offense Marijuana DUI

For first offense marijuana DUI, the penalties are as follows:

• Jail time of 10 days to 180 days
• Fines of at least $1,250
• License suspension for 90 days
• Up to 5 years of probation
• Community service
• Enrollment in alcohol/drug treatment program

Second Offense Marijuana DUI

A second offense marijuana DUI means a second arrest within 7 years of the first offense. For second offense marijuana DUI, the penalties are as follows:

• Jail time of 90 days to 180 days
• Fines totaling approximately $3,500
• License revoked for 1 year
• Up to 5 years of probation
• Community service (minimum 30 hours)
• Substance abuse evaluation

Keep in mind that additional penalties may apply depending on the nature of the second offense.

Third Offense Marijuana DUI

Like a second offense, a third offense marijuana Dui means a third arrest within 7 years of the first offense. For third offense marijuana DUI, the penalties escalate a great deal. Charges and penalties are as follows:

• Charges with a Class 4 Aggravated Felony
• Minimum 4 months in prison
• Vehicle may be seized by state of Arizona
• Fines of up to $150,000
• License revoked for 3 years
• Up to 5 years of probation

Additional Penalties to Consider

There are additional penalties involved or enhanced penalties involved depending on the circumstances of a DUI arrest. Most importantly, keep the following instances in mind:

• DUI with a Child Under Age 15 in the Vehicle – This is considered a Class 6 Felony and Aggravated DUI.
• DUI with a Suspended/Revoked Driver’s License – This is also considered a Class 6 Felony and Aggravated DUI.

Learn More About Arizona Marijuana Laws

To learn more about marijuana and other drug possession charges and what your legal rights may be, be sure to contact a skilled criminal defense attorney today. The team at The Law Office of James Novak will work with you to ensure you receive ample information on your legal options.