Ask the AZ DUI Attorney

People who don't live in Arizona, or even Arizonians who don't live in Scottsdale or Maricopa County, are shocked when they learn about how DUI charges are initiated and prosecuted in Arizona. Not only are people horrified to learn that the police officers here can haul you into the jai and forcibly draw your blood themselves, but are more shocked by the draconian the sentencing scheme which provides for some of the harshest penalties in the nation.

Unfortunately, as many DUI defendants learn first-hand, the attitudes of the government officials prosecuting DUI's in Arizona demonstrates the absurdity as to how DUI's are handled in this State. Usually, DUI charges are prosecuted by City Prosecutors in one of the various City Courts around the Valley. City Courts do not handle felonies, only misdemeanors, and DUI's are often the most numerous types of cases in those courts. Sadly, instead of looking at a DUI charge as another misdemeanor offense, some of the Prosecutors view DUI charges as much more serious than other misdemeanor offenses like Criminal Damage or Misdemeanor Assault. These overzealous Prosecutors treat DUI charges more like a felony Robbery or Burglary case, attempting to punish to the maximum extent, whether the circumstances justify it or not.

The Mandatory Minimum Sentencing Regime enacted by the Legislature has compounded the exorbitant sentencing problem by taking the power away from the impartial Judge to determine a sentence that is appropriate and tailored to the specifics of an individual defendant's case. A Judge in Arizona now has certain sentences he must by law impose depending on what charge a Prosecutor has alleged. Thus, the State really does hold all the power in these situations. At our firm, we pride ourselves in maintaining good relationships with the State, and will work with the Prosecutors to show them your individual circumstances and try to get you the best deal possible.

If you are from out of state and are worried about a DUI charge in Arizona, or even if you live in Arizona, you need an attorney to help explain to you what potential punishments you are facing and how best to work your case going forward. At the Rosenstein Law Group, we strive to help our clients in every way possible. We even the odds.

The answer is a resounding yes. When someone is charged with a DUI, they are almost always charged with two separate DUI offenses. The State uses this strategy because it increases their conviction rates; i.e., if they don't get a guilty verdict on one charge, they can still try and get you on the other. In a DUI case where the cops think you are under the influence of alcohol, most of the time a person will be charged with being impaired to operate a motor vehicle at least to the slightest degree, and also with having a Blood Alcohol Concentration (BAC) above a certain amount, either .08, .15, or .20. In a case where it is alleged that a person is impaired by drugs, a similar thing happens. The suspect will be charged with driving while impaired to the slightest degree, as well as driving with the presence of a drug or its metabolite (waste product) in the blood.

But, if you ever find yourself in the situation where you have been charged with a DUI relating to the use of drugs, having a prescription for the drugs may operate as a defense to the DUI drug charge. However, having a prescription for the drugs is not a defense to the impairment charge. The moral of the story is, if you take a medication that could cause side effects that might affect your driving, you must be incredibly cautious while you are operating a vehicle. If you are pulled over, you should protect yourself and immediately call an experienced DUI lawyer who may be able to help show the prosecutor that your conduct was not criminal, and was in fact innocent.

Reading little fine print is important. Because when you signed up for your driver's license in Arizona you consented to having your blood, breath or urine sample taken and analyzed if a stopping officer has reasonable suspicion to believe you are driving under the influence. That is what is known as the implied consent law. By getting your license and driving on Arizona roads you have agreed to those terms. You have no say in which test is administered; that is completely up to the officer who stops you.

The consequences for refusing a breath, blood or urine test are severe. The state will suspend your license for one year. If this is your second refusal in 84 months then the state will suspend your license for two years. Note that if you initially refuse but then change your mind, for example, when you get to the police station, then tell an officer immediately. You need to expressly agree to the testing and successfully complete the testing, as anything less is taken as a refusal.

Even though you must give a sample of your breath or blood that does not mean that every test or procedure the police officer asks you to do is required by law. That's why you need a skilled DUI defense attorney who knows the proper procedures and tests required by law to help you maintain your rights.

In the case of State v. Harris, the Arizona Court of Appeals, Division 1, made a ruling about driving under the influence of marijuana that will have far reaching effects in Arizona. State v. Harris, No. 1 CA-SA 12-0211, 2013 WL 504558 (Ariz. Ct. App. Div. 1 Feb. 12, 2013). On its face, the decision has the appearance of re-affirming Arizona's zero tolerance policy on driving under the influence of drugs; however, the practical reality of this ruling is significantly more important to both interstate tourism and Arizona citizens' right to travel. The impact will be felt for years to come.

In Harris, the trial court ruled, and the Superior Court (acting as an appellate court from a court of limited jurisdiction) affirmed, that the presence of the compound Carboxy-THC alone in the defendant's system was insufficient to support a conviction for a DUI under A.R.S. § 28-1381(a)(3), the DUI drug statute. Id. This was an interesting and well-reasoned ruling (once one understands both the DUI statute and the unique nature of Carboxy-THC). Quite simply, Carboxy-THC is the "grandchild" metabolite of THC. THC is the active ingredient in marijuana, and the substance that causes individuals who consume it to become "high." THC lasts in the body for about 4-6 hours until it is metabolized by the body into Hydroxy-THC. Hydroxy-THC is still a psychoactive substance, which means that it can cause impairment if ingested or present in the human body. Hydroxy-THC lasts for a few more hours in the body until it breaks down into Carboxy-THC. Carboxy-THC is completely inactive and does not cause any impairment, and can stay in the human body for weeks before being excreted mostly through urine and sweat. Basically, what all this means is that if the average recreational smoker smoked a marijuana joint, they could have the active, impairing substances in their system for no longer than twelve hours, but could wake up sober and still have Carboxy-THC in their system for up to three to four weeks after they got high.

Until this month's ruling in Harris, Arizona's zero tolerance DUI drug policy was being interpreted differently by the defense and prosecution in Arizona. Id. In the situations where a criminal defendant was found to only have Carboxy-THC in their system, most prosecuting agencies would argue that even though the person may not be impaired at the time of driving, they were still in violation of the DUI drug statute, A.R.S. §28-1381(a)(3) . They based this position on the wording of the statute which prohibits any driver from having "any drug defined in section 13-3401 [THC is included in this list] or its metabolite in the person's body." Since Carboxy-THC can only be produced by the presence of THC in the system at some point in time, the State argued that Carboxy-THC was by definition a metabolite, no matter how far removed from the active component, and therefore would generally choose to prosecute these cases. The Defense community argued that the metabolite of THC was Hydroxy-THC and since the statute was referring to the singular possessive of the words "drug" and "metabolite", only THC and Hydroxy-THC satisfied the statute. This argument was further bolstered by the fact that it would be silly to make driving with Carboxy-THC, a non-impairing substance, in the system a violation of the DUI statutes.

In Harris, the Arizona Court of Appeals, in Division 1, overruled both lower courts and ruled that Carboxy-THC is a metabolite of THC and therefore satisfies the statute. Harris, at *3. In effect, this decision validates the stance that the State has been arguing: that "inactive" marijuana cases should be charged and prosecuted.

It is my understanding that the Arizona Supreme Court has been asked to take this case on appeal, but as of the time of the writing of this article, the Supreme Court has yet to grant certiorari. The practical reality of the Court of Appeal's decision is a potentially economically significant one to all Arizonians. In essence, the ruling means that anyone who has smoked marijuana within the past four weeks is potentially driving under the influence every time they get behind the wheel of a car in Arizona. While numerous states like Colorado and Washington have recently legalized (at the State level) the use of Marijuana as a recreational substance, Arizona is tightening its laws. Combine this recent DUI decision with the fact that in Arizona, possession of any useable amount of marijuana or paraphernalia is a felony, and Arizona risks the financial consequences of losing significant tourism from those states from individuals who legally recreationally smoke in their home states. Even those individuals who plan on abstaining from smoking while in Arizona are deterred from coming because they do not want to commit the crime of DUI simply by driving (while sober) over the state line. Furthermore, Arizona citizens who travel to those states on vacation and legally consume marijuana under those state laws should be aware that unless enough time has passed (weeks), when they come home, every time they get behind the wheel, although sober, they are technically committing the crime of DUI drugs.

All Arizonians need to take a good hard look at this law, and the Court of Appeal's decision interpreting the law, and decide for themselves whether this is a reasonable regulation. It is easy to take a blanket position of being tough on DUI drugs, but punishing people who are driving sober seems like it has gone too far. Also, is Arizona in an economic position to turn away tourism dollars from an ever growing segment of States who do not feel the same way about the recreational use of marijuana? These are issues that should be discussed within our legal community, and at the very least is information that should be disseminated to all of our clients.