Tucson DUI Lawyers for Drugged Driving Charges
DUI charges aren’t limited to claims that motorists were driving while impaired by alcohol. Motorists can also be arrested for driving while under the influence of drugs, even if the motorist is only using a prescribed medication. Not only can you be charged with driving while impaired on drugs or medication, the simple act of driving with a controlled substance in your system is a separate DUI charge. In recent years, given both the legalization of marijuana for medical purposes in Arizona, and the prevalence of prescribed medications in the overall population, the number of Drug DUI arrests has skyrocketed.
Arizona Revised Statute § 28-1381(a)(1) makes it illegal to operate a motor vehicle if you are impaired by any drug in your system – prescription, illegal, or otherwise. Arizona Revised Statute § 28-1381(a)(3) makes it a crime to drive with a controlled substance, or it’s metabolite, in your system, and puts the burden on you to show that the drug was being used as prescribed. DUIs based on marijuana use are a hotly debated topic, and the evidence allowed varies from courtroom to courtroom, as it is illegal for a licensed doctor to prescribe marijuana under federal law – instead, people who qualify are able to receive a medical marijuana card based on a “recommendation” from a qualifying medical professional. This means, by the way, that an individual with a medical condition and a recommendation from a doctor can legally purchase and smoke marijuana in Arizona, as far as the state of Arizona is concerned, but will still be committing a federal crime through that same act. As a practical matter, federal law enforcement officers don’t make arrests involving personal use amounts of marijuana, and federal courts don’t prosecute personal use cases, but the law prohibiting the possession of marijuana still remains a part of the United States Code.
Drugged driving cases typically begin in one of two ways. In one set of cases, a motorist is stopped for an equipment or driving violation and the officer claims to smell marijuana. The officer will ask the motorist if they have been smoking marijuana, or “Am I going to find anything in the car?”. Perhaps it is worth mentioning that answering, “I’m sorry officer, my lawyer has told me never to answer that question. I would like to call my lawyer now” may be preferable to admitting to a crime or lying to a law enforcement officer. Regardless of the answer the motorist gives, they will be asked to step out of the car and given field sobriety tests.
Field sobriety tests, however, are not designed or validated to determine impairment. The late Dr. Marceline Burns, who performed the original validation studies in the 1970s was always candid that the tests “cannot measure driving impairment”. The tests are designed to help an officer determine whether there is a probability that the driver has an alcohol concentration over .10. There is a more extensive series of tests, called a Drug Recognition Evaluation, that involves measuring the subject’s pupil size in 3 different lighting conditions, taking the subject’s pulse repeatedly, and checking the subject’s muscle tone, that purports to allow an officer to determine if the individual is impaired by drugs. DRE evaluations are rarely administered, however, because of the length of time they take and conditions necessary to perform them. Instead, officers claim that the FST’s demonstrate impairment, and if the motorist isn’t impaired by alcohol they must be impaired by drugs. Despite the authors of the validation studies flatly stating that this is not true, courts often admit field sobriety test evidence to support a prosecution for DUI Drugs.
The second way that a DUI Drugs case can begin occurs when an officer pulls a motorist over for an equipment or traffic violation and smells an odor of alcohol. The motorist is given the field sobriety tests, performs poorly in the officer’s opinion, and is arrested for DUI. At some point the motorist is given either a preliminary breath test or an evidentiary breath test. If the reading is below a .08, the arresting officer frequently decides that the level of impairment they believe they are seeing is inconsistent with the alcohol reading, then requests a blood sample to test for drugs in the driver’s system, even though the officer never had a suspicion that the driver was using drugs. (Note that if the driver refuses to provide a blood sample at this point the arresting officer can still ask for the driver’s license to be suspended for a year, as described above, and ask a judge for a warrant to obtain a blood sample).
Nesci & St. Louis is the premier DUI law firm in Arizona. Our attorneys have nearly 40 years of combined experience in protecting the rights of individuals charged with DUIs throughout Tucson and Southern Arizona. We defend our clients’ cases strategically when defending DUIs involving illicit drugs or legal medications.
What Can Lead to a DUI Drug Charge?
You are probably already familiar with the basics of Arizona’s laws regarding DUIs based on the consumption of alcohol. You are considered to be impaired if your breath or blood alcohol content (BAC) is .08 percent or higher. You can still be charged with a DUI with a lower BAC, however. You might also be charged with DUI based on the presence of drugs or their metabolites that can be detected in a blood or urine testing.
Common drugs that lead to DUI include:
- Over-the-Counter (OTC) Medications — Such as cold medicines, cough medicines, allergy medications, and OTC sleep aids.
- Prescription Pharmaceuticals — Including prescription pain medications (analgesics), antidepressants, antihistamines, anxiolytics, attention disorder/ADD medications, cough suppressants, muscle relaxants, and sedatives.
- Illegal Drugs — Including marijuana, cocaine, ecstasy, heroin, LSD, MDMA, peyote, and PCP. (Note that having a medical marijuana card does not prevent the state with charging you with a DUI for having marijuana in your system, although the medical marijuana card would be a defense to a charge of driving with marijuana or its active metabolite in your system. However, the state may seek to prosecute you on a charge that you were impaired by marijuana, even if you have a medical marijuana card).
If you are found in possession of an illegal drug or a prescription medication that was not lawfully prescribed to you, then you could face a companion charge of drug possession, in addition to a DUI charge.
Penalties for Driving under the Influence of Prescription Drugs
Driving while impaired by prescription medications carries stiff penalties in Arizona, even for first-time offenders. A conviction for DUI involving a prescription drug might result in:
- Mandatory overnight incarceration (10 days in jail, 9 of which will be suspended if you complete all of the other requirements imposed by the court).
- Heavy fines
- Driver’s license suspension
- Mandatory completion of a state- or MVD-approved program
- Community service hours
As with an alcohol-related DUI conviction, being convicted of a DUI involving drugs typically triggers increased insurance premiums. Under the zero tolerance laws of Arizona, drivers who are underage may endure a two year driver’s license suspension for a DUI with trace amounts of a drug in their systems.
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