Home / Good News / Landmark State Court Ruling Says THC in Blood is NOT Sufficient Grounds for DUI

Landmark State Court Ruling Says THC in Blood is NOT Sufficient Grounds for DUI

Phoenix, AZ – A Court of Appeals in Phoenix delivered a ruling on Thursday that could set a precedent as legal systems grapple with the question of driving under the influence of cannabis.

“Medical marijuana users cannot be convicted of driving while under the influence of the drug absent proof that they were actually impaired, the state Court of Appeals ruled Thursday.

In a major setback for prosecutors, the judges pointed out that Arizona, unlike some other states, has no law that spells out that at a certain level of tetrahydrocannabinol (THC) in the blood a person is presumed to be impaired…

What that means is every case where prosecutors charge a medical marijuana user with breaking the law requires expert testimony to show that particular individual was impaired at that particular level of THC.”

This is a huge win for citizens and for rationality itself, as it negates the government’s assumption that an arbitrary number means a driver is impaired, which provided grounds for criminal conviction.

Nadir Ishak was pulled over in 2013 after his vehicle drifted out of its lane. Instead of invoking his 5th Amendment right to remain silent, Ishak admitted to smoking cannabis that morning when the cop probed him for some sign of “criminal” behavior. The cop said Ishak had bloodshot eyes and “body tremors and eye tremors” during a field sobriety test.

Ishak was charged with ‘driving while impaired to the slightest degree’ and ‘driving with marijuana in his body.’ Jurors convicted him of the second charge, but even though Ishak had a state-issued medical card, the city judge refused to allow him to tell this to jurors.

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Presenting the medical cannabis card would have shown the jury that “Ishak was legally entitled under the 2010 Arizona Medical Marijuana Act to use the drug and have it in his system.” Judge Diane Johnsen at the Court of Appeals recognized that Ishak was denied a fair trial, and further pointed out the city judge was wrong to rule that “it was up to Ishak to prove he was not impaired.”

The city prosecutor had actually stated it’s irrelevant whether a defendant is actually impaired or not, and suggested the 2010 law means medical cannabis cardholders have to prove through expert testimony that THC in their blood does not cause impairment in “people generally” or “in any person.”

It appears city judges and prosecutors had set up a nice little trap for medical cannabis patients – but the higher court just demolished it.

Nothing in the statute … requires a cardholder to present expert testimony (or precludes a cardholder from offering non-expert testimony) on the question of whether the cardholder was impaired due to THC,” wrote Judge Johnsen. “Further supporting this conclusion is the reality that, at present, there is no presumptive impairment limit established by (Arizona) law.

Johnsen also rightfully pointed out: “And, according to evidence here, there is no scientific consensus about the concentration of THC that generally is sufficient to impair a human being.

Even though Ishak had a blood-THC level of 26.9 nanograms, there was no foundation to prove this causes impairment.

Indeed, there is no widely accepted way to test cannabis impairment in drivers, as THC metabolites can show up in the blood long after a person has ingested cannabis. Also, experienced users can be completely unimpaired even if they test above an arbitrarily-derived blood-THC limit.

“The Arizona Supreme Court already has ruled that the mere presence of metabolites — the chemical compounds caused the the breakdown of marijuana in the body — is insufficient by itself to prove impairment. That’s because those chemicals can remain in the body for days or weeks afterwards.”

Despite the best efforts of local prosecutors to criminalize medical cannabis patients when they drive vehicles, it appears that state courts are having none of it.

“Thursday’s decision is the latest in a string of appellate court rulings that have limited the ability of prosecutors to bring various charges against medical-marijuana patients. These range from limiting the kind of evidence that prosecutors can use to bring drugged-driving charges, to requirements for law enforcement officers to give back drugs taken from legal users.”

Here’s a novel idea. Cops and prosecutors should stop harassing medical cannabis patients and focus on real criminals.

  • David Daisy May Boldock

    Don’t drink and drive, smoke pot and fly. 🙂

  • David Daisy May Boldock

    Happy New Year and handsel to everyone around the globe. 🙂

  • john smith

    i some time wonder what life would be like if they actually had the public interest at heart and respected peoples rights and not money
    it is very dangerous to deal with the police and to know your rights and assert them

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    • Arizona Willie

      Contact a marijuana lawyer ( many dispensaries have things posted about pot lawyers ) and get him on retainer ( most will not charge just for being your lawyer on call … only the big shots do that. There are lawyers everywhere with degrees who are happy to help out.

      If you get pulled over just hand them the lawyers card and tell them to talk to your attorney and say nothing more other than your name. Call the lawyer with your cell phone and, if he answers, hand it to the cop and let him talk to your attorney. Most likely you will go on your way because the cop knows he can’t fuck you over … your lawyer is already involved.

      Of course you might have to pay the lawyer $100 or so but better than being searched and harrassed and perhaps arrested.

  • MrRetloc

    I take solace in the knowledge that right thinking people inhabit seats of true justice. Gloves off must be the rallying cry of people. Fraud perpetrated daily in local fraud-courts, fraud-police, fraud-city councils, fraud-county commissions must be eradicated. Until we prosecute judges and prosecutors, like those mentioned here, the slaughter of our human rights at the hands of officially sanctioned slave masters will continue. Making up rules to suit a momentary need for subjugation, as was done by this court, must be stopped. Too many greed ridden litigators get away with “murder” when allowed to continue RAPING our justice system. Both the prosecutor and the judge in this case must face examination by their respective Bar Associations for the most egregious over-reach of power I have heard of to date. Kudos to members of the higher court who remain our most reliable protection against those legal thugs, all too common in our court system. Justice usurped in favor of fraud and extortion, such as we witness here, will not end till the perpetrator(s) feel the sting of incarceration, loss of position and freedom, humiliations visited on many of those they have destroyed before. This poor excuse for a judge and prosecutor, were fully aware their actions, the lie and misrepresentation; supported the true agenda … convict at any cost. And, where was the defense? In my experience local justice is dispensed by collusion and conflict of interest. For lack of over site, no fear of sanction exists for those holding sway over the lives of citizens. Must we assign Human Rights Observers, endowed with the power to over-rule, in every court room? For the budget conscience among us; simply reduce the salaries of judges and prosecutors to cover the added costs. Zero net budget increase.

    • David Hay

      I’d say the prosecutor has done their job above and beyond their requirements considering its not their personal feelings towards the matter they’re prosecuting it’s to prove the accused is guilty and try to ensure “justice” (punishment) is carried out. Surely you couldn’t blame them for taking advantage of a terribly biased judges rulings even though they are against common sense?

      • Michael Barthel

        Sorry Dave…
        You clearly do not understand the courts or the way prosecutors do their job.
        And no amount of wording from me will change your mind. But I bet you are capable of doing research to understand the process better.
        IF a complaint is brought to a prosecutor, they have certain laws to abide by. But much of their work is either at their discretion (making a name for themselves) or they are politically motivated. But don’t take my word, ask some police, lawyers, read a little…. It’s frustratingly fascist. Like most of our law enforcement.
        And no Dave, I have never been oppressed by our laws, never been in jail, never arrested… I’m just related to the system by blood and friendships. And I read…

  • Rogue cops cost us money

    There are people that were charged and convicted of DUI just having THC in their system. THIS IS A HUGE VICTORY.

  • IceTrey

    Real criminals cost money they don’t make money like a DUI.

    • Alan McLemore

      …point [:-{D>

  • Ed

    The problem is the Judge & Prosecutor, should be ordered to attend a class explaining what happened here! Both would FAIL, because they never showed up for the class! The second time this happens they should be fired!

  • truthseeker53


  • Higzy

    Another cash-grab? I don’t think so. GFY! lol

  • phlushfish

    I know from experience that it does impair you.


      When you smoke once in a while… you are right… yes, yes.
      But when one smokes all day every day for a few weeks … One becomes a sober and high man.
      And once we’ve become that high sober guy, even if we do come back to being an occasional smoker, the pot will have less destabilizing effect on us.
      We will then be accustomed and we will therefore acquire the ability to handle ourselves while under the effect of kush…
      ***for life***
      well, maybe not in those times where some friend offers you some shatter hits of pure oil…then maybe i’d wait a little, but well, even if I drive… the worst that could happen is that I miss my highway exit, and that I drive a mini little bit faster than my grandma.


    • Kathy Ruth

      I’m guessing you don’t have very MUCH experience, though! I’m 60 and I know from experience that it does NOT impair EVERYBODY!

      • phlushfish

        That’s scary that you don’t know you’re impaired 🙁

        • John Raymond

          With pot when your a recreation smoker and you smoke tough it becomes a part of your life. Weed helps me get through this crazy life I make 700 a week but I only take get 100 a week to live off because of child support and taxes I bust my ads from 7am to 3pm Monday through friday. Someone stole my car I have a crazy kids who won’t let me be in my kids life. I took one hit of weed and got a dui and I wasn’t even stoned b.s its all about money I just try to shut up and go to work and smoke my weed I don’t rob rape or kill people I don’t touch little boys and girls I don’t sell drugs so wtf is the problem with you pot haters if you hate….do like your momma taught you if you don’t have n e thing nice to say keep it to yourself but I bet you pot haters love to drink.

        • John Raymond

          Science goes both ways on it also marijuana should be the only drug legal 100 percent it saves life’s and cures hunger and makes you happy wtf is so bad about that

  • Jay Mooser

    The issue is now when they redraft the law (and they will), they will put the onus on the patient to provide expert opinion to what level of THC they can have which will be printed on their card. There is huge ramifications to this as these experts (probably Drs) won’t provide the expert opinions and even more concerning they won’t prescribe it except in the most extreme cases of medical need. We think we won this as citizens but we just screwed ourselves by allowing the government to get even more involved with our healthcare.

  • encore1259

    OK – cops said his eyes were bloodshot, tremors, etc. Those are standard boilerplate observations that only requires “cut & paste” in the report. The cop doesn’t actually have to make those observations, but if it’s in the report, the assumption is that the cop did.

    • Arizona Willie

      Along with ” I smelled pot ” which you can’t prove he did or didn’t … he can just lie ( and they do everyday ) and claim it as the basis for searching your car and confiscating everything he can find including the car.

  • Laura L

    I have read many so many stories where Medical M. has been proven to help patients with seizures and all different pain, and that doctors are prescribing this more. One of my best friends lives in Colorado and had one of his first seizures in his early 40’s while driving and had caused a 9 car accident. No one was hurt, and because he had a MMJ card, they assume that you are high driving and that was the cause of the accident, not a seizure. A few years ago while at work, he was found in a ditch because he had a seizure, His coworker found him and took him to the hospital, and he did not even know even his name. The news papers who covered the story said he faked a seizure, but it was clear that he had one and that he even flatlined in the hospital as he was leaving. They did not say anything about that though. This case was dismisses as he clearly had a seizure. And now 6 months ago, he had another car accident leaving work during rush hour. Again, he had a seizure, and they found the MMJ card on him. And because they found 5.8 THC in his blood, they are trying to say that he caused the accident on purpose and that he tried to hurt people, meanwhile he had another seizure. His doctors are all on his side, and all his family and friends are standing by him as he is a great guy and a father of a 6 year old boy. His seizures have ruined his life, and the MMJ card has been used against him, and now he is fighting the Colorado court systems since it is legal for him to have it, but Federally its against the law and according to the state of Colorado he was over the limit by .8. So instead of charging him with a Driving while impaired, they are trying to prosecute him and say he did not have a seizure, that he was high, and that he intended to hurt people. He may go to jail because of his seizures, because they are trying to blame MMJ to be a cause of his accidents. I want bring awareness to his case, since the law is trying to make an example of an innocent man. Plus I am seeing more parents giving it to children as a desperation to prevent seizures, meanwhile when they grow up as adults, this can be used against them. My friend now takes an Uber everywhere he goes since he is afraid to have another seizure behind the wheel, and also he has to make a daily phone call to the court to get tested so that he does not have Cannabus in his system, which is what was prescribed by his doctors to begin with. The whole whole case does not make sense, as there are witnesses that saw the accident and will say that he past out at the wheel because of the seizure, but yet he has to pay a lot of money to courts and lawyers to prove it. Sounds like a money making scheme by the courts and DA to get more money from innocent people. Too bad he does not live in Arizona, because he would not be going through this.

  • Arizona Willie

    They also need to stop searching because the cop ” says ” he smelled marijuana. Impossible to prove what he smelled if anything besides his own BO.

    They lie and make the claim ” I smelled marijuana ” even when they didn’t. Can’t prove they didn’t smell it.

    Cops should not be allowed to search homes or vehicles based on ” smelling pot “.

  • This is a fair ruling for DUI tests. Like discussed further at FightDUICharges a driver needs to know ways how to fight and beat a DUI charge when their rights may have been violated during the arrest.