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DUI and Drugs - A New Look

Posted by James A. Charnesky | Oct 14, 2014 | 0 Comments

Shilgevorkyan - A New Look At Drug Based DUI

Many months ago I published an article on DUI drugs.  The information in that blog entry is now outdated as a  recent court case, State v. Shilgevorkyan, significantly changes how we look at the drug based DUI.

Prior to Shilgevorkyan, the presence of any illegal drug, or its metabolite, active or inactive, could result in a conviction for DUI.   This was possible because Arizona law (A.R.S. §28-1381(A)(3) prohibits driving or being in "physical control" of a vehicle while there is any drug or its metabolite (as defined in A.R.S. 13-3401) in a person's body.  Arizona Courts did not differentiate between active and inactive metabolites.  Because inactive metabolites can remain in the body up to days and even weeks it was not uncommon for sober individuals to be charged and convicted of DUI.

The Arizona Supreme Court, in Shilgevorkyan, held that the previous interpretation of the statute was absurd, noting that under that interpretation, the "statute would create criminal liability regardless of how long the metabolite remains in the driver's system or whether it has any impairing effect." Shilgevorkyan at paragraph 15.  The court rejected the prosecutor's interpretation of the statute noting that would lead to absurd results. The court further went so far as to state that a result is absurd if it is "so irrational, unnatural, or inconvenient that it cannot be supposed to have been within the intention of persons with ordinary intelligence and discretion." Shilgevorkyan at paragraph 14.

The Arizona Supreme Court, in Shilgevorkyan, held that "because the legislature intended to prevent impaired driving, we hold that the metabolite reference in §28-1381(A)(3) is limited to any of the proscribed substances metabolites that are capable of causing impairment."  The ruling itself does not eliminate the possibility that one can drive sober and still get a DUI as the court held that the legislature "intended to prohibit driving with any amount of an impairing substance resulting from a drug proscribed in §13-3401 in the body." A person who is not impaired can still be guilty of a DUI under this statute if they were to consume a non-impairing amount of a drug and have it or an active metabolite in their system. Any amount of an impairing substance, even if one has not consumed enough of it to actually impair, is presumed to be impairing.  While this still may seem illogical, it is a far more rational approach than the previous application of the law which prohibited driving with non-impairing metabolites.

The bottom line is that if one consumes an illegal drug, or a prescription drug that one does not have a prescription for, do not base your decision to drive on how you feel.  You must wait until the active drug has been fully metabolized.

What Are The Consequences Of A Drug Related DUI?

The consequences of being convicted of driving with drugs or their active metabolites in your body are more serious than the consequences of a standard DUI.  This is because MVD will revoke a defendant's driving privilege for a minimum of one full year for any DUI conviction that is drug related. If you are convicted of A.R.S. §28-1381(A)(3) you will be subject to a one year license revocation.

Often times, a prosecuting agency will offer a plea to simple DUI (driving while impaired to the slightest degree - A.R.S. §28-1381(A)(1)) with the idea that pleading to the simple DUI statute your driving privilege will not be revoked. Unfortunately, pleading to impairment by drugs under A.R.S. §28-1381(A)(1) may still result in a one year revocation.The bottom line is that you do not have to be convicted under the drug statute to have your license revoked for one year. If the court reports to MVD that the DUI was the result of drug impairment, your license may still be revoked for a minimum of one year.

In addition to the license revocation, other penalties and consequences may include:

  • Mandatory jail time
  • Mandatory fines
  • Administrative courts costs
  • Jail fees
  • Substance abuse and counseling and associated fees
  • Increased car insurance rates
  • A drug related criminal record


DUI - Prescribed Drugs

Another question I am often asked is whether one can be arrested for driving under the influence of drugs if the drugs were prescribed by a physician? Because the drugs are perscribed, you have a defense to the per se drug statute - A.R.S. §28-1381(A)(3). However, even if the drugs are prescribed, if your ability to drive has been impaired, even to the slightest degree, you can still be arrested and convicted of DUI in violation of A.R.S. §28-1381(A)(1) .  Just as the legality of alcohol and alcohol consumption is not a defense to DUI, the legality of consuming a prescription drug is also not a defense. You may be authorized to take the drug, but you cannot operate a motor vehicle if it impairs your ability to drive.

About the Author

James A. Charnesky

James Charnesky is a Tucson DUI Defense Lawyer. His practice has always been committed to criminal defense. He has NEVER prosecuted, and has ALWAYS fought for the rights of the accused.


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