Arizona has severe driving under the influence (DUI) laws. While a traditional DUI case occurs when someone is driving with a blood alcohol content level of 0.08 or more; Arizona also charges people with DUIs if they are suspected of being under the influence of drugs. As a zero-tolerance state, Arizona law enforcement has the liberty to arrest anyone they suspect is driving while impaired or intoxicated. Therefore, drug-related DUI arrests are exceedingly common. Once arrested, Arizona DUI law contains harsh penalties.

In Arizona there are two sections to its DUI statute that forbid driving while under the influence of drugs. They are A.R.S. § 28-1381(A)(1) and A.R.S. § 28-1381(A)(3). Both statutes forbid someone from driving or being in actual physical control of a vehicle while under the influence of a drug. The main difference between these two sections comes in whether the state has the burden of proving impairment. If the person accused of DUI had ingested a drug not listed in A.R.S. § 13-3401, then the state is required to prove that person was actually impaired to the slightest degree under A.R.S. § 28-1381(A)(1). If, however, that person was under the influence of a drug listed in A.R.S. § 13-3401 or its metabolite, then the state does not need to prove actual impairment. Under A.R.S. § 28-1381(A)(3) if a person ingested a drug listed in A.R.S. § 13-3401 or its metabolite, that person is presumed impaired. For example, if you were arrested under the suspicion that you were under the influence of marijuana while driving, you could be charged with both A.R.S. § 28-1381(A)(1) and A.R.S. § 28-1381(A)(3). To prove that impairment, law enforcement would perform a chemical test (typically a blood analysis) to prove that you were under the influence of the impairing drug. The test results would be analyzed and if you are shown to have had marijuana in your system, you would be presumed to have driven under the influence.

Can I Receive a DUI for Just a Drug Metabolite?

Unlike alcohol, there is no generally applicable concentration that can be a proper indicator of drug impairment. To combat this, A.R.S. § 28-1381(A)(3) establishes that any person who tests positive for any A.R.S. § 13-3401 drug is legally and irrefutably presumed to be under the influence. So, if you are arrested under drug-related DUI suspicion and a chemical test reveals recent marijuana ingestion, you are irrefutably under the influence. The next logical question that sparks up in people’s minds is, “what if I ingested marijuana a week ago?”

It is common knowledge that some drug metabolites stay in a person’s system days and even weeks after initial ingestion. Marijuana, for example, has metabolites that will often stay in a person’s system for at least 30 days. However, marijuana’s impairing metabolite, Hydroxy–Tetrahydrocannabinol does not exist in the blood very long and is quickly broken down into a non-impairing metabolite. Because A.R.S. § 28-1381(A)(3) only uses the word “metabolite” rather than “impairing metabolite,” defendants had been convicted for a drug-related DUI weeks after ingesting marijuana. Clearly not in the spirit of the statute, the Arizona Supreme Court found this improper. The Court limited DUI convictions based off a metabolite in A.R.S. § 28-1381(A)(3) to “any of a proscribed substance's metabolites that are capable of causing impairment.” Therefore, a person will only violate A.R.S. § 28-1381(A)(3) if chemical tests reveal any amount an impairing metabolite in their body. But escaping A.R.S. § 28-1381(A)(3) in this situation may not completely absolve you of DUI liability.

Two Bites

Under A.R.S. § 28-1381(A)(1), it is unlawful for a person to drive or be in actual physical control of a vehicle if that person is impaired to the slightest degree by the influence of any drug. So, using this statute you may be convicted of a DUI using a legally prescribed drug or even an over the counter medicine. Arizona prosecutors love this flexible statute and in any DUI case you will almost always see A.R.S. § 28-1381(A)(1) included as a charge. This is because A.R.S. § 28-1381(A)(1) gives the state a metaphorical “second bite at the apple.”

In a drug-related DUI case, if the state is unable to prove that the defendant had a sufficient amount of a drug or its impairing metabolite in his body, then A.R.S. § 28-1381(A)(1) permits the court to still charge the defendant for being impaired to the slightest degree.

To succeed on a drug-related DUI charge for being impaired to the slightest degree, the state must prove two things:

1. The defendant was under the influence of a drug; and
2. The defendant was impaired to the slightest degree by reason of the drug.

This is determined by a jury, who receives no instruction on what impaired to the slightest degree means or looks like. All the jury may rely on is the evidence presented at trial. That evidence will likely include the defendant’s driving habits, presence of a collision, field sobriety test performance, and the results from any blood drawn from the defendant. How law enforcement first suspected the defendant may also provide the jury with incriminating evidence. Most of the time, law enforcement begins a DUI investigation after noticing someone swerving between lanes, speeding, running a red light, making a wide turn, or failing to appropriately control their vehicle. These infractions will give rise to a suspicion that the defendant is impaired and the officer will then make a stop.

During that stop, a DUI investigation will be conducted. The investigation entails field sobriety tests. Commonly, these tests include the Horizontal Gaze Nystagmus, the Walk and Turn, One Leg Stand, and others. The tests are used to assess whether the individual has enough autonomous control of his muscles and functions to multitask without losing balance. These tests, as well as the traffic infractions that led to the stop will all be used to persuade the jury that the defendant was impaired. Because of the ample amount of evidence that the state will have, and the low threshold of “to the slightest degree,” it is imperative to have trained experienced attorneys that know potential defenses for your case.

Driving and Actual Physical Control

If available, an extremely effective defense to raise when attacking a DUI charge is that the defendant was not driving or in actual physical of the vehicle. To be convicted under Arizona’s DUI statute, the defendant had to “drive or be in actual physical control of a vehicle.” Whether or not a person was driving relies heavily on witness observation and testimony of the suspect driving. Because most DUI’s occur after a collision or a traffic stop, there is usually sufficient testimony, whether by a witness or an officer, to show the suspect had been driving. However, in certain cases an individual may be charged with a DUI and yet no witness can testify to seeing him driving a vehicle. A frequent example happens when the defendant is asleep in the driver’s seat, parked and off the side of the road. When this is the case, the state must prove that the defendant was in actual physical control (APC) of the vehicle. The jury will make this determination and will use the following jury instruction to guide their decision:

In determining the defendant was in actual physical control of the vehicle, you should consider the totality of circumstances shown by the evidence and whether the defendant's current or imminent control of the vehicle presented a real danger to [himself] [herself] or others at the time alleged. Factors to be considered might include, but are not limited to:

1. whether the vehicle was running;
2. whether the ignition was on;
3. where the ignition key was located;
4. where and in what position the driver was found in the vehicle;
5. whether the person was awake or asleep;
6. whether the vehicle's headlights were on;
7. where the vehicle was stopped;
8. whether the driver had voluntarily pulled off the road;
9. time of day;
10. weather conditions;
11. whether the heater or air conditioner was on;
12. whether the windows were up or down;
13. any explanation of the circumstances shown by the evidence.

With a multitude of factors to be considered, it is important that an accused person have a defense attorney who will examine all available evidence and provide an appropriate as well as sufficient defense that ensures the possible result.

Let Us Help

Drug-related DUI’s can result in serious and harsh consequences that can carry a sentence of a class 1 misdemeanor for first time offenders. Fighting a drug-related DUI requires a team of highly experienced DUI lawyers to ensure you receive the best result possible. Let Tempe DUI Lawyer’s criminal lawyers and their knowledge of Arizona’s DUI law guide you through the process. The legal battle ahead will be led by strong representation and diligence.