Driving Under Influence In the area of auto insurance, it is a crime to drive while intoxicated in all states, and there are objective standards for determining intoxication. But the rules around marijuana intoxication are hazy with uncertainty over what constitutes intoxication and how to reliably test for it. States tend to rely upon the observations of the police, Johnston noted. While some states enforce a zero-tolerance approach, the defense attorney said this approach is open to both scientific and legal challenges. He cited a case involving Arizonas zero-tolerance law regarding marijuana and driving. Two drivers appealed their driving under the influence (DUI) convictions after they were not allowed to use their medical marijuana cards for their defense. The court ruled the two were not immune to DUI prosecution but given they had legal authorization for medical reasons, they could be exonerated if they could prove that the amount of marijuana in their system was not enough to cause impairment. He said some states presume that if a driver tests positive for any marijuana at all, the driver is presumed to be under the influence and must prove otherwise. Making a Federal Case Even with uncertainty over federal law enforcement, Johnston advises an insurer looking to escape a cooked-up marijuana claim to make a federal case out of it. Federal law is an insurers best hope in such cases due to the U.S. Constitutions supremacy clause that favors federal over state laws when the two conflict, according to Johnston. State laws legalizing marijuana obviously conflict with the federal controlled substance act under which marijuana is illegal. Under President Barack Obama, the U.S. attorney general said as long as the state regulations are reasonable and the person complies with the state regulation, the federal government would not prosecute.
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