Can I get a DUI/DWI when I’m not impaired?

In Arizona, the DUI statutes (A.R.S. 28-1381; 28-1382; and 28-1383) permit a police officer to cite or arrest a driver for DUI under several different circumstances. This article will address some of the least obvious ways that Arizona drivers get DUIs.

Lack of Impairment

In Arizona, the most common way a driver in cited or arrested for driving under the influence, is when the officer believes that he has probable cause that the driver is impaired to the slightest degree, under A.R.S. 28-1381(A)(1).

Officers often look to several factors to make a decision about whether the driver should be cited / arrested:

  • Driving errors
  • Field sobriety tests
  • The horizontal gaze nystagmus test

Although technically, the prosecuting attorney doesn’t need a blood alcohol concentration over the legal limit (.08) to prove impairment to the slightest degree, often a prosecutor will feel uncomfortable prosecuting a driver if the blood results or breath results show an alcohol concentration under the legal limit. One caveat to that maxim is if the blood also contains impairing drug or drug metabolites, regardless of whether the driver has a prescription.

The Metabolite Charge 28-1381(A)(3)

In Arizona, the police officer can cite/arrest the driver when the police officer has probable cause to believe that the driver is driving with a controlled substance in the driver’s body.

When the case goes to court, if the driver can prove that the drug was taken as prescribed, the prosecutor will often dismiss this charge. Unfortunately, it is often difficult to prove this to a prosecutor due to the following factors:

  1. Some drugs are never supposed to be taken while driving
  2. It is difficult to prove when a drug is taken as prescribed rather than being abused

Often, the litigants look to the therapeutic range of quantity of the drug for information about whether the drug is taken as prescribed. It is very common, for a driver to be taking a drug as prescribed, but still be impaired.

Imagine a driver is prescribed a sleep aid like Zolpidem. That driver may be lawfully allowed to take Zolpidem, and he may have taken the proper dosage, but he certainly isn’t taking it as prescribed if he is driving while on the drug. Additionally, the prosecutor may also be able to prove that he was impaired by the drug, if he exhibited signs of drowsiness or inattentiveness.

What about non-impairing Metabolites?

In Arizona, the DUI statute (A.R.S. 28-1381(A)(3)) prohibits driving with most drugs or metabolites of a prescription and recreational drugs. Often, the police suspect a person is on drugs, and so they go through certain steps to draw the driver’s blood in an effort to prove that there exists a metabolite of a drug in that person’s blood.

Often, when the blood results are returned from the crime lab, the results are exactly what the police suspect. However, on many occasions, the results vary widely from the police suspect.

For instance, often the quantity of any drug may be so low that the police cannot confirm that the crime lab testing was sufficiently accurate to detect the drug. Additionally, there are often only breakdowns of the drug (metabolites) and not the actual drug in the driver’s blood. If the metabolites are not impairing, the prosecution will have difficulty admitting the results to a jury.

To summarize: if the quantity of the drug is so low that the crime lab cannot report the drug, or the results show only an inactive (or non-impairing) metabolite, the prosecution will often dismiss the case, or offer a very lenient plea offer.

I have been reviewing blood results and speaking to crime lab employees for the last 13 years. It has become a major part of my practice as a criminal and DUI attorney. I have the ability to retest blood at an independent crime lab. Additionally, I have the ability to get second (and sometimes 3rd) opinion contesting what the crime lab reports are in driver’s blood. Hiring a competent attorney to determine whether there are issues with a blood test is critical. If you have questions, please feel free to call me.

Share this post

Share on facebook
Share on google
Share on twitter
Share on linkedin
Share on pinterest
Share on print
Share on email