Loading
Donate

Arizona Drugged Driving

In Arizona, it is unlawful for a person to drive a vehicle (1) while under the influence of any drug, or any combination of liquor and/or drugs if the person is impaired to the slightest degree, OR (2) while there is any drug or its metabolite in the person's body. Ariz. Rev. Stat. Ann. §§ 28-1381(A)(1) and (A)(3) respectively (West 2010). However, a registered qualifying medical use patient may assert an affirmative defense in a case involving a charge under subsection (A)(3) (marijuana metabolite). Also, the (A)(3) charge can only be based on actual whole blood THC or its active metabolite. Inactive metabolites cannot provide a factual basis for an (A)(3) charge.

(1) Driving under the influence of any drug

Affirmative Defense

Substances other than marijuana: A person using a drug, as prescribed by certain types of medical practitioners is not guilty of this second type of DUI. Id. § 28-1381(D). However, recommendation to use marijuana from a medical practitioner is not considered to be a prescription.

Marijuana: The fact that the person is a registered medical marijuana patient in this state is not a defense to this first type of DUI (driving while impaired to the slightest degree). It is, however, an affirmative defense to the second type of DUI (driving with THC or its active metabolite in the drivers system). Specifically, if a driver proves at trial by a preponderance of the evidence that the level of THC or its active metabolite was insufficient to cause impairment, then the jury must find the driver not-guilty.

NOTE: It is unclear whether (1) the driver must prove that the level of THC or its active metabolite is objectively insufficient to cause impairment in drivers in general or (2) the driver must only prove that the level of THC or its active metabolite was subjectively insufficient to cause impairment in the particular driver in question.

Implied Consent

  • By operating a vehicle in Arizona a person gives consent to a test of the person’s blood, breath, urine, or other bodily substance for the purpose of determining alcohol or drug content. Id. § 28-1321(A).
  • If a person under arrest refuses to submit to the test the test shall not be given. Id. § 28-1321 (D)(1). However, an officer may then obtain a search warrant for blood or urine and force the driver to submit to a test. Telephonic warrants are authorized and magistrates are available 24/7.
  • If the person refuses, their driver's license may be suspended or denied for 12 months. Id. § 28-1321(B). The revocation will be imposed regardless of whether the officer then obtains a search warrant for blood or urine.
  • A person has a right to consult with an attorney before submitting to a chemical test, or as soon as possible after being taken into custody, provided that it does not unreasonably interfere with the DUI investigation. State v. Holland, 711 P.2d 602, 603(1985).
  • The state is not required to provide free blood test to accused, but state may not unreasonably interfere with reasonable attempts to for defendant to obtain blood or other scientific test for purpose of attempting to establish evidence of his sobriety w/in the crucial window for testing. Ariz. Rev. Stat. Ann. § 22-424 (West 2010). The officer must provide a notice of the option to obtain a duplicate drug test and will draw an extra vial of blood if the driver so requests.
  • Evidence of refusal is admissible in any legal action or proceeding. Id. § 28-1387(D).

Penalties

  • First offense - jail for 10 to 180 days (all but 1 day may be suspended if the driver completes drug/alcohol treatment; alcohol and/or drug treatment; fine of approximately $1,800 (plus additional surcharges, assessments and jail costs); license suspension for 90 days (restricted license for the last 60 days); probation for up to five years; community service; offender may be ordered to attend one or more sessions of the Mothers Against Drunk Driving Victims Impact Panel; ignition interlock device required for 12 months (6 months early completion if driver is compliant). Id. §§ 28-1381 (I)-(J).
  • Second offense - jail for of 90 to 180 days (home detention eligible after 6 days); approximately $3,500 (plus additional surcharges, assessments and jail costs) in fines and costs; license revoked for one year; substance abuse evaluation; probation for up to five years; minimum of 30 hours of community service; offender may be ordered to attend one or more sessions of the Mothers Against Drunk Driving Victims Impact Panel. Id. §§ 28-1381(K)-(N).

Aggravated DUI

  • DUI w/ a child under 15 years old in vehicle Class 6 Felony/Aggravated DUI -- up to $150,000 in fines (plus surcharge); license revocation for three years; probation for up to five years. Id. § 28-1381(A)(3);Id. §§ 28-1383 (J)-(K).
  • DUI violation while driving privileges suspended Class 6 Felony/Aggravated DUI -- up to $150,000 in fines (plus surcharge); license revocation for three years; probation for up to five years. Id. § 28-1381(A)(1); Id. §§ 28-1383 (J)-(K).
  • DUI while under an ignition interlock device requirement Class 6 Felony/Aggravated DUI -- up to $150,000 in fines (plus surcharge); license revocation for three years; probation for up to five years. Id. § 28-1381(A)(1); Id. §§ 28-1383 (J)-(K).
  • Third DUI violation in 84 months Class 6 Felony/Aggravated DUI -- up to $150,000 in fines (plus surcharge); license revocation for three years; probation for up to five years. Id. § 28-1381(A)(1); Id. §§ 28-1383 (J)-(K).
  • Refusal to submit a blood alcohol content test while under an ignition interlock device requirement Class 6 Felony/Aggravated DUI -- up to $150,000 in fines (plus surcharge); license revocation for three years; probation for up to five years. Id. § 28-1381(A)(1); Id. §§ 28-1383 (J)-(K).

Sobriety Checkpoints

Arizona's interpretation of the federal Constitution allows law enforcement officials to conduct sobriety checkpoints.

  • Roadblocks screening for drunk drivers are condoned in light of immense public concern regarding drunk driving, so long as there is minimal intrusion into drivers' liberty. State v. Superior Court, 143 Ariz. 45, 691 P.2d 1073)(1984).

Case Law

State v. Harris, 234 Ariz. 343, 322 P.3d 160 (Ariz., 2014) - Held that inactive THC metabolites do not provide a factual basis for a charge of DUI per se.

Dobson v. McClennen (Ariz., 2015) - Established an affirmative defense for registered MMJ patients.

Wozniak v. Galati, 30 P.3d 131 (2001) - Found that a metabolite present in defendants system could reasonably allow a jury to conclude that defendant was driving while under the influence of drug or its metabolite.

State v. Gaffney, 8 P.3d 376 (2000) - Implied consent statutory warnings were unnecessary when defendant gave express consent to a test of blood, breath, or urine.

State v. Hammonds, 192 Ariz. 528 (App. Div.1 1998) -- Statute proscribing driving with a drug metabolite in one's body is rationally related to legitimate state purpose and does not violate equal protection clause. Even though scientific evidence showed conclusively that the mere presence of a metabolite does not necessarily represent impairment, contrary expert testimony successfully showed that the presence of inert metabolites does not rule out impairment.

State v. Love, 897 P.2d 626, 629 (1995) -- Factors to be considered when determining whether defendant "operated" motor vehicle: whether the vehicle was running or the ignition was on; where the key was located; where and in what position the driver was found in the vehicle; whether the person was awake or asleep; if the vehicle's headlights were on; where the vehicle was stopped (in the road or legally parked); whether the driver had voluntarily pulled off the road; time of day and weather conditions; if the heater or air conditioner was on; whether the windows were up or down; and any explanation of the circumstances advanced by the defense.

Per Se Drugged Driving Laws

Arizona has a zero tolerance per se drugged driving law enacted for cannabis, cannabis metabolites, and other controlled substances. (Arizona Revised Statutes, Section 28-1381)

Arizona's law calls for mandatory imprisonment of 24 hours and not more than six months upon conviction for a first offense.