July 2013 Archives

July 17, 2013

Arizona has the toughest Sheriff in the Country, and now the toughest Marijuana DUI laws.

439288_roach.jpgDriving under the influence of marijuana is illegal in Arizona under Arizona Revised Statutes (Section 28-1381(A)).

In Arizona, motorists are prohibited not only from driving while impaired by the effects of marijuana, but also "while there is any drug defined in section 13-3401 or its metabolite in the person's body." Recent case law exists that allows for prosecution under this law in Arizona, even if the motorist was not driving impaired. That is, if the only substance found in their bodily system was residual trace compounds that were present due to Marijuana smoked or ingested weeks prior to the DUI stop, they may still be prosecuted.

Frequent Marijuana users, especially Medical Marijuana users, have been known to tolerate anywhere from 2 to 5 times of what would be considered the legal limit of Marijuana in some of the states that have legalized it in some fashion, and still drive without impaired function in driving skills.

We provided a post post on this ruling several months ago. This is refresher and update on the topic since the ruling could have broad impacts throughout the country. A US Supreme Court ruling that would hold this decision in favor of prosecuting the non-impaired motorist, could potentially have serious consequences not only for Arizona residents, but also for people from out of state who are driving to or through Arizona and used marijuana a month before their trip. We believe that the defendant is appealing the case to the Supreme Court, but there is no word on whether the court has decided to hear this case as of yet.

A first time marijuana DUI offense can be punished by up to six months in jail, as well as with a mandatory substance abuse program and the requirement that you install an ignition interlock device on your vehicle. If convicted of only driving under the influence of marijuana (as opposed to marijuana and alcohol), your driver's license will also be revoked for a year.

The active ingredient in marijuana is the drug THC. Unlike blood alcohol tests, a blood test for marijuana cannot determine how intoxicated or impaired you might be from the THC. THC is rapidly metabolized in the blood stream and turns into about eighty different molecules called metabolites. These metabolites are stored in the user's body fat. Some of them have a half life of twenty hours, but others can take 10-13 days to be eliminated from the body. When a blood test is taken, certain non-active metabolites may show up on the test. Anecdotally, some heavy marijuana smokers have reported positive test results well over a month after stopping smoking.

Earlier this year in the case Arizona v. Shilgevorkyan, an Arizona appellate court ruled that any motorist with any metabolite or marijuana in their bloodstream could be convicted of driving under the influence of marijuana. The defendant had been stopped for speeding and unsafe lane changes and agreed to take a blood test. One metabolite, Carboxy-THC was found in his bloodstream.

The defendant argued that it was not "the" metabolite referred to in the statute. His attorney put forward an expert who testified that this metabolite was not psychoactive and could take 4 weeks to leave the body. The superior court agreed with him, but the State appealed. The appellate court looked at the legislative intent of the statute and determined that the statute intended to outlaw any of the metabolites into which THC metabolizes.

The medical marijuana bill barely passed in Arizona--it was defeated in 12 out of 15 counties and as the case described above shows, Arizona continues to penalize drug use very harshly even if it happened in the past.

Continue reading "Arizona Marijuana DUI Laws " »

July 1, 2013

All DUI convictions carry harsh penalties. But, by far aggravated DUI expose a person to the harshest sentencing.

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In 2012, a total of 7,696 Extreme DUI arrests were made representing 29% of the total 26,334 DUI arrests; and aggravated DUI (felony) arrests 3124 representing 12% of all DUI arrests last year.

A majority of DUI arrests in Arizona are misdemeanors. Even Extreme DUI charges are brought as misdemeanors. However, a misdemeanor will be elevated to an Aggravated DUI (felony) when certain factors are present surrounding the DUI charge, as defined under A.R.S. 28-1383.

For example, a driver was recently arrested for DUI for driving with a suspended license while approximately four times over the legal limit, Maricopa County. Under these circumstances a motorist is exposed charges of aggravated DUI (felony DUI). Prosecutors bring charges of aggravated or felony DUI when not only is a driver impaired by alcohol or illegal substances, but he or she (1) has a suspended, cancelled, revoked or restricted license or (2) has two DUI convictions within seven years of the current DUI or (3) has been ordered to have an ignition interlock device on a car.

It is illegal to drive with .08% Blood Alcohol Content (BAC). However, in Arizona, a driver does not need to have blood alcohol levels this high to be charged. It is illegal to drive even when you are only slightly impaired by alcohol or illegal substances.

A driver may also be charged with more serious offenses when the blood alcohol levels exceed the legal limit. If a driver's blood alcohol level is .15% or more you can be charged with extreme DWI. In addition to Extreme DUI (.15%) Arizona also has Super Extreme DUI laws. A person can be charged with super extreme DWI, if their BAC is .20 % or higher. Assuming the additional circumstances described above are met, aggravated DUI can be charged for regular DUIs, as well as for extreme DWI or super extreme DWI.

Generally, the higher the BAC for which a person is convicted, the more harsh the penalties. This includes longer incarceration terms. But by far the harshest penalties go to people who are convicted of an aggravated DUI. An aggravated DUI is a Class 4 felony. However, it can also be charged as a Class 6 felony if you are impaired and driving with a child under the age of 15 in the car. Felony DUI may also be charged if someone is severely injured or killed while the driver was under the influence.

The penalties for an aggravated DUI in Arizona can be harsh. There is a mandatory minimum of 4 months in prison and up to 3.75 years in prison. "Mandatory minimum" means that the judge is required to sentence you to at least that amount (4 months) in prison regardless of how good one's character or lack of prior record.

For example, if you have had two prior DUIs and you drink a glass of wine at happy hour, and as a result you weave in and out of traffic and get pulled over by the police, you could face aggravated DUI charges. If you are so charged, the judge is required to sentence you to at least four months in prison.

On top of the mandatory minimum prison time, you may face fines and costs that together exceed $4600. A person's driving privileges may be revoked for a year and you may be placed on probation. An aggravated DUI will be on a person's record, which means a person's sentence could be enhanced in the future if you are ever again convicted of a felony.

Moreover, on future job applications, you will have to answer that you have been convicted of a felony, thereby limiting the kinds of work that will be available to you. There is a significant social stigma attached to felony convictions. If a person's license has been revoked, it can be difficult to get to work, thereby further impacting a person's employment prospects.

If you are charged with a Class 6 felony DUI, there are no mandatory minimums. However, you can be sentenced to prison for up to two years. There is a mandatory license revocation.

Continue reading "Felony DUI Laws, and Penalties in Arizona " »