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Depending on the circumstances at the time of a police stop of your vehicle, you can find yourself facing a drug DUI charge based on the side effects of a valid prescription medication you are taking.
Having a prescription does not automatically protect you from a drug DUI charge in Arizona.
Under Arizona law, you can be charged with DUI if the prosecution claims you were impaired “to the slightest degree” by a prescription drug, or if a covered drug or qualifying metabolite was found in your body under Arizona’s drug-DUI statute.
Arizona’s DUI statute prohibits driving or being in actual physical control of a vehicle while impaired by any drug.
This includes prescription medications like Xanax, Ambien, hydrocodone, oxycodone, benzodiazepines, antidepressants, antihistamines, sleep aids, or pain medication. It also covers marijuana, including medical marijuana.
If you have been arrested after taking a prescription medication, contact Rosenstein Law Group immediately. Our firm offers free, confidential case reviews, is available 24/7, and has offices in Scottsdale, Tempe, and Gilbert. Our DUI attorneys have more than 200 years of combined criminal defense experience, including prescription drug DUI defense.
Call Rosenstein Law Group now at (480) 248-7666 for a free, confidential consultation with one of our DUI and criminal law attorneys, or reach us online.
The penalties you may face for prescription drug DUI depend on the charge, any prior history you may have, your driver’s license status, whether a child was in the vehicle with you, whether there was an accident involved, and whether the case is charged as a misdemeanor or aggravated felony DUI under ARS 28-1383.
A DUI under ARS 28-1381 is a Class 1 misdemeanor.
Refusing a requested chemical test can lead to a 12-month suspension for a first refusal, or 24 months for a second or subsequent refusal within 84 months.
A drug DUI can also trigger administrative license consequences. Under ARS 28-1385, the Motor Vehicle Division suspends driving privileges for at least 90 consecutive days after qualifying test results, including drug and drug metabolite results unless you have a valid prescription.
Lastly, any DUI conviction on your criminal record can have lasting consequences even after you complete all the elements of the court-imposed sentence. You could find that for many years afterward employers, landlords, and lenders who do background checks on you can hold a past drug DUI conviction against you.
A prescription drug DUI may be charged as an aggravated DUI under ARS 28-1383 if certain aggravated circumstances exist. Examples of these circumstances include:
Most aggravated DUI categories under § 28-1383 are Class 4 felonies, with the exception being that DUI with a person under 15 in the vehicle is a Class 6 felony.
We have already seen some of the defenses that may be available to you if you are charged with prescription drug DUI, like no intoxication or the existence of a valid prescription. But these are not the only legal defenses that you may have available. This is why having an experienced DUI defense attorney is so important to you.
At Rosenstein Law Group, our criminal defense lawyers investigate the facts of your case, including the DUI stop, the arrest, the chemical testing, and the legal theory you are charged under.
What follows are some of the potential defense strategies we may employ on your behalf.
For an impairment-based charge, the prosecution must prove, beyond a reasonable doubt, that you were drug impaired to the slightest degree. Your Rosenstein Law Group criminal defense attorney may argue that instead of your impairment the officer’s observations were caused by fatigue, anxiety, illness, injury, disability, poor instructions, road conditions, or normal behavior.
If the charge against you is based on drug or metabolite presence in your body, your lawyer may present evidence that the drug you were using was a lawful prescription medication and you were using it as prescribed.
A non-impairing metabolite alone cannot support an ARS 28-1381(A)(3) conviction. For medical marijuana patients, a limited affirmative defense can exist if you can show authorized use and a drug or metabolite concentration insufficient to cause impairment.
Blood and urine evidence can be powerful, but it is not automatically reliable or automatically admissible. A Rosenstein Law Group defense attorney may examine the chemical test sample draw and its subsequent handling, the testing method, instrument records, analyst qualifications, lab documentation, chain of custody, reporting language, and whether the prosecution can connect the result to the time of driving.
Drug DUI cases often involve timing issues. For example, a toxicology result may show that a drug or metabolite was present when the sample was collected, but the legal issue may be whether you were impaired at the time of driving or whether the substance fits the charge.
The Arizona Supreme Court has recognized that, unlike alcohol, there is no generally applicable concentration that can be identified as an impairment indicator for illegal drugs (although impairment can still be shown through expert testimony and circumstantial evidence), and that drug impairment can be difficult to tie to a definitive concentration threshold.
If police lacked reasonable suspicion, probable cause, valid consent, a valid warrant, or a lawful basis for the blood test or urine sample, then your defense attorney may seek suppression of the evidence gathered.
For example, the Arizona Supreme Court has recognized the importance of timely access to counsel and independent testing in DUI investigations, and that denial of access to counsel can prevent you from gathering potentially exculpatory evidence while it still exists.
Prosecutors in Arizona can base their cases on two statutes: ARS 28-1381(A)(1) (whether you are impaired to the slightest degree) and ARS 28-1381(A)(3) (whether a drug or its metabolite is present in your body). The grounds for these two causes of action may look similar on the surface, but they require different kinds of proof and are subject to different legal defenses.
For an impaired driving DUI under ARS 28-1381(A)(1), the question is whether the medication affected your ability to drive. Even if the medication was lawfully prescribed to you, Arizona law says that is not a defense if the state proves impairment.
For a case based on ARS 28-1381(A)(3), the prosecution focuses on the presence of a covered drug or metabolite in your system. ARS 13-3401 is the statute that identifies the kinds of drugs that qualify under this cause of action, including categories like dangerous drugs, narcotic drugs, marijuana, and prescription-only drugs.
Paragraph (28) of ARS 13‑3401 defines what a prescription‑only drug is:
Examples of prescription medications include opioids, benzodiazepines, stimulants, sedatives, sleep medications, and other drugs that can affect coordination, reaction time, alertness, or judgment.
ARS 28-1381(D) provides that if you are using a drug as prescribed by a licensed medical practitioner who is authorized to prescribe it, then you are not guilty of violating subsection (A)(3) of the statute.
Arizona DUI law treats valid prescription use as an affirmative defense. This means that you have the burden to prove by a preponderance of the evidence that you were taking the drug as prescribed. The defense also does not give you permission to drive while impaired, take more than prescribed, mix medication with alcohol or other drugs in a way that affects driving, or use someone else’s prescription.
The table below summarizes the differences between these two grounds for prescription drug DUI charges.
Charge | What the State Must Prove | Why It Matters |
|---|---|---|
|
ARS 28-1381(A)(1): Impaired to the slightest degree |
You drove or were in actual physical control of a vehicle while under the influence of any drug, alcohol, vapor-releasing substance, or combination, and were impaired to the slightest degree. |
The state must prove impairment. A valid prescription is not a defense to this charge if the medication impaired your driving. Arizona law expressly states that entitlement to use the drug is not a defense to an (A)(1) charge. |
|
ARS 28-1381(A)(3): Drug or metabolite in the body |
You drove or were in actual physical control while a drug defined in ARS 13-3401, or its qualifying metabolite, was in your body. |
The prosecution generally does not need to prove actual impairment for a 28-1381(A)(3) drug-or-metabolite charge, but the valid-prescription defense may apply if you were using the medication as prescribed. |
Medical marijuana is not treated like a traditional prescription medication for purposes of the valid-prescription defense. The Arizona Supreme Court, in multiple cases, has addressed medical marijuana use in DUI prosecutions. Its holdings have included:
Arizona has strict DUI laws that can carry harsh penalties. Prescription drug DUI cases are technical, scientific, and time-sensitive. Evidence may need to be preserved. MVD deadlines may apply. Medical records, prescription histories, dosage instructions, pharmacy records, body-camera footage, DRE materials, testing processes, and lab documentation all may become important to the prosecution’s case and to your legal defense.
Rosenstein Law Group offers free, confidential consultations for clients charged with prescription drug DUI. Our attorneys include board-certified DUI specialists, and all our DUI defense lawyers have extensive experience in negotiating with prosecutors and presenting strong defenses for our clients in court.
To set up your free, confidential initial consultation with one of our quality DUI defense lawyers, call us today at 480-248-7666 or use our online contact form to schedule a free consultation.