Drug DUI

A.R.S. § 28-1381(A)(1), and A.R.S. § 28-1381(A)(3)

What is a Drug DUI?

Although most people associate a DUI with alcohol, you can be arrested for a DUI if you are under the influence of illegal drugs, prescription drugs, and/or marijuana (“Drug DUI”). Arrests for Drug DUIs are not as common as for alcohol because it is more difficult for an officer to measure the presence and amount of drugs in your system at the scene of the incident. For example, there is no breath test like there is for alcohol to measure amount of drugs in your system. There are field sobriety tests; however, not all officers are trained to administer them to you. Rather, a police officer needs to contact a drug recognition expert, also known as a DRE, to come to the scene to assist with the investigation.

If a police officer is properly investigating a Drug DUI, he will call on a drug recognition expert to come to the scene and finish the investigation. The DRE will conduct special evaluation to determine: (1) whether you are impaired, (2) whether the impairment relates to drugs or a medical condition, and (3) what types of drugs are causing impairment. This drug evaluation is comparable to the field sobriety tests that an officer does during an investigation for an alcohol DUI. The police use this evaluation as scientific evidence to support their suspicions of your impairment in the event of trial.

There are two different types of Drug DUIs that you may be charged with:

  1. A.R.S. § 28-1381(A)(1): Under the Influence to the Slightest Degree
  2. A.R.S. § 28-1381(A)(3): Driving While There Is a Drug in the Defendant’s Body

It is likely that the prosecutor will charge you with both of these charges as they like to throw as many crimes at you to see what will stick. The Impaired to the Slightest DUI, A.R.S. § 28-1381(A)(1), is also applied to cases involving alcohol. It is the zero tolerance crime that does not require proof of any alcohol or drugs in your system, but rather proof of impairment. As for the second Drug DUI charge, A.R.S. § 28-1381(A)(3), the prosecution only needs to prove two elements: (1) you were driving, and (2) you had a particular drug (such as codeine or amphetamine) in your body at the time. Unlike the Impaired to the Slightest DUI, the prosecutor does not have to prove that the drug caused you to be impaired.

If you were on prescription drugs at the time of your arrest, your Phoenix Drug DUI Lawyer can use this as your defense, but only for A.R.S. § 28-1381(A)(3), and not for the Impaired to the Slightest DUI. Since it is an affirmative defense under A.R.S. § 28-1381(D), you will have to prove to the prosecutor or jury that you used the drug as prescribed or according to the doctor’s instructions. To rebut your defense, the prosecutor may try to show that you took an amount of drugs over the prescribed dosage, or you took the prescription at the wrong time of day, or you were not supposed to take the medicine while driving. The prosecutor will surely have a toxicologist expert whose laboratory tested your blood sample to prove that the amount of drugs in your system was over the prescribed amount.

Under the Arizona Medical Marijuana Act, it is a defense to a Drug DUI that you were prescribed medical marijuana. To establish this defense, your Phoenix Drug DUI Lawyer will prove:

  1. You have a valid medical marijuana ID card from the Arizona Dept. of Health services that allowed you to use for medical marijuana at the time of your arrest;
  2. The amount of marijuana was insufficient to cause impairment at the time of your driving.

As to the second element, the court of appeals in Iskak v. McClennen, 241 Ariz. 364, 367, held that a defendant is not require to introduce expert testimony for the defense; rather, s/he can introduce evidence that s/he was not actually impaired.

What are the Consequences?

The consequences for a Drug DUI, assuming it is not an Aggravated DUI, is similar to a DUI based on upon alcohol. They are charged as class 1 misdemeanors and subject to the same mandatory penalties:

  • Jail time between 1 to 180 days;
  • Probation for 0 to 5 years;
  • Interlock device for 6 to 12 months, only if the Judge specifically orders it;
  • Driver’s license suspended for 90 days (no driving first 30 days, and restricted driving for last 60 days). Please note, your license could be suspended for 1 year if the case is specifically reported to the MVD as a Drug DUI vs. Impairment to the Slightest DUI under A.R.S. § 28-1381(A)(1);
  • Counseling – which includes drug screening;
  • Community service;
  • Motor Vehicle Department (MVD) points – 8 and Traffic Survival School;
  • SR-22 Insurance for 3 years – this is a document that your insurance company will send to the MVD in order to reinstate your license. Unfortunately, in order to add SR-22 to your insurance, your insurance rates will increase by 40% after just one DUI.
How We Can Help You

Just like every crime in Arizona, a Drug DUI is subject to mandatory maximum and minimum penalties. If you hire Lavy Law’s Phoenix Drug DUI Lawyer, we will insure that your penalties reflect the minimum guidelines by highlighting to the judge and prosecutor all of the mitigating circumstances in your case. For instance, if you are convicted of a Drug DUI, you could face anywhere between 1- 180 days in jail. In order to reduce your penalties, your Phoenix Drug DUI Lawyer will work with you to complete a class on drugs prior to the date of your plea. This way, we can show the prosecutor proof of your successful completion of the drug class and negotiate a favorable sentence of just one day in jail (and nine days suspended).

If you decide not take a plea, and want to go to trial to be acquitted of the charges, Lavy Law’s Phoenix Drug DUI Lawyer is your best trial attorney. As a former prosecutor, we have tried every type of DUI case, including Drug DUIs, and asserted every type of defense. In the case of People v. Utterback, we successfully won a case in which the defendant was found to have Carisprodol (Soma), Mebrobamate, and Phenobarbital in his system. We know how to cross-examine and discredit the prosecution’s witnesses, such as their police officer who may have failed to call a drug recognition expert to the scene.

Please feel free to read our Recent Cases to see that your Phoenix Drug DUI Lawyer has won a case just like your own.

If you are being accused of a Drug DUI offense, Contact Us immediately for a free consultation by a Phoenix Drug DUI Lawyer.

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