Drug DUI Overview
Drug DUIs can have more defenses than alcohol-related DUIs.
In that sense a person charged with ARS 28-1381(a)(3) may have more of a probability of winning at trial than an alcohol DUI. This is true because prescription medications, and now medical marijuana, are legal to have in your system while you drive a vehicle.
What are the penalties for Drug DUI?
Drug DUIs, presuming they are not aggravated DUI, have the same penalties as regular, first time alcohol DUIs.
They are class 1 misdemeanors, and and carry the same mandatory penalties.
This means jail time ranging from 1 day to 6 months.
Fines of up to $2,500 plus surcharges.
Up to 5 years of probation.
If prescription drugs are legal why was I even charged with Drug DUI?
The truth of the matter is that the police do not care about the exceptions in the law.
Police officers make money by appearing and testifying in trials, for interviews, and for court hearings.
The cities and counties they work for make money by charging and convicting people for DUIs.
Even if you are not impaired by the drugs in your system the officers will charge you and testify that you were.
If prescriptions are your defense fo your drug DUI then the State has to prove the following at trial:
- that you were operating or in actual physical control of the vehicle
- that there was a drug in your body
- even though you had a prescription, you did not take that prescription according to the doctor’s instructions
One way the state can try to prove that you did not take the prescription according to the doctor’s instructions is by proving that the levels of the drug in your blood exceeded the therapeutic range accepted by the practice of medicine.
Another way to prove that you did not take the prescription according to the doctor’s instructions is if the prescription information provided to the jury indicates that you should not take the medication while driving.
In the vast majority of cases, people charged with this crime will be able to show that their levels are within the therapeutic range and that their doctor advised them driving is okay.
What is a therapeutic range in a Drug DUI case?
A therapeutic range is a scientifically substantiated range of drug levels in a person’s body for the purpose of treatment.
Ranges vary from drug to drug. As a person continues to take medication they develop a tolerance for the effects the medication has on their body.
A person who takes Xanax under a prescription will begin with a small dosage and as they continue to take the drug, they will need a larger dose so that the drug continues to treat the patient as intended.
A therapeutic range represents what is an acceptable range of dosage for a patient.
Being within the therapeutic range is a strong indication that the drug in your system was not an altering substance.
Moreover, as long your levels are within the therapeutic range, it can act as evidence that you did in fact take the prescription according to your doctor’s instructions.
Does medical marijuana have the same defense as a prescription drugs in a Drug DUI?
Medical marijuana is still new in Arizona, legally speaking.
A new law that makes legal what was previously illegal will inevitably have legal uncertainties.
Having a recommendation for medical marijuana is a defense to a drug DUI.
Moreover, there are no defined therapeutic levels of marijuana, so it can be argued that any amount (no matter how high) is consistent with the medical recommendation.
The significant negative in marijuana cases, especially courts outside of Maricopa County and Pima County, is the negative public reaction that still persist around the drug.
Marijuana has a negative connotation, and there are some jurors who refuse to accept its medical use.
Being aware of biased jurors and drawing them out in voi dire is an important part of the trial process.
No matter what the law is, some people will ignore it and vote guilty on a medical marijuana case even if you have a medical marijuana card.
I have been charged with driving while impaired is that the same as a drug DUI?
Being charged with A.R.S. 28-1381(a)(1) is not the same as being charged with A.R.S. 28-1381(a)(3).
An impaired to the slightest degree charge (A.R.S. 28-1381(a)(1)) has different elements, and the state must prove that the drug in your body impaired you to the slightest degree.
This is an important part of assessing your ability to beat your charges at trial.
Impairment is about the effect of the drug on the person.
Tolerance levels are a very important part of the defense.
As noted above, the longer a person takes a drug, the more a person becomes tolerant to said drug, and a larger amount of the medicine is needed to treat the patient.
Likewise, the more tolerant a person becomes to the effects of the drug, the less likely they are to be impaired by smaller amounts in the body.
I told the prosecutor that I took my medicine last night and didn’t drive until 11:00 a.m., they didn’t care and still said I am guilty of Drug DUI.
One thing you will learn about prosecutors as you go through your case is that they don’t know very much.
There is a big joke in the legal community: defense attorneys know more than the State’s expert.
This is true because defense attorneys are required to look at small details in a person’s case.
That attention to detail leads to a surprising amount of knowledge. Prosecutors, on the other hand, are trained with pre-formed questions for their experts.
They don’t explore the issue, they take a formulaic approach.
They ask the same questions that have been asked by prosecutors for years. Don’t be upset about their incuriosity— it’s an advantage to you.
The State’s expert will testify that any amount of drug in a person’s body will have an effect.
The prosecutor will ask that question to try and prove that any amount will cause impairment to the slightest degree.
They will couple that information in closing with the officer’s testimony about filed sobriety tests and tell the jury that that information proves impairment.
However, that’s not the whole story.
When asked, the expert will state that therapeutic levels do exist, and they will testify to what they are for the drug at issue (other than marijuana).
They will testify that tolerance is a scientific fact.
They will testify that people who take a drug over a period of time will build up tolerance to that drug.
They will testify that tolerance means a person is less affected by the drug.
Finally, they will testify that they cannot tell you if the person was impaired.
They will also have to admit that they don’t know if the person was impaired by the drug in their system.
To know that information, the State’s expert would have to study the individual charged with the DUI both while they were not on the drug and while they were on the drug, and at various levels.
That information is not available to the State and their expert cannot give an opinion.
The prosecutor told me that I could not show my prescriptions to the jury in a Drug DUI trial because they are hearsay.
This has been a trend in recent years.
Unfortunately, some judges have erroneously permitted the State to preclude evidence of prescriptions in testimony form.
However, the rules of evidence precisely address this issue.
Testimony about a doctor’s conversation with a patient is not hearsay as long as the conversation is about medical diagnosis and treatment.
Under this rule, both your testimony and the prescription itself are not hearsay.
The amount of effort the government will go to prevent the truth is amazing.
Will an accident stop me from winning my Drug DUI case?
Undoubtedly, an accident in a DUI case is a negative fact.
An accident will act as evidence to prove impairment.
Most jurors will presume impairment if a case involves an accident.
However, it is not impossible to avoid a conviction for DUI, even if there is an accident in your case.
Drug DUI and the science behind tolerance levels and therapeutic ranges is a nuanced analysis.
The defense requires careful study of the facts and prescriptions.
Likewise, there are many causes for accidents, and there are many ways to attack the investigating officer’s credibility.
Most officers, when they suspect a DUI, will immediately move to a DUI investigation and ignore the causes of the accident.
Accident reconstruction and causes are secondary to the DUI investigation.
Very few misdemeanor DUIs will have a thorough accident investigation.
Cross-examination of the officer is key on this point: walking the officer through their training and experience in accident reconstruction, having the officer explain that the police train their officers in reconstruction, and discussing the tools used to reconstruct accidents (tape measures, impact points, and witness interviews are what officers are trained to do).
If you cross an officer and inform the jury of that training, and then make him or her admit that they did nothing that they were trained to do, the jury will feel betrayed by the officer.
Likewise, if the officer did not take the time to reconstruct the accident, how can they testify beyond a reasonable doubt that there are no non-impairing reasons for the accident?
They can’t. Their lack of attention to their job is to your benefit.
