Sun City, AZ asked in DUI / DWI and Constitutional Law for Arizona

Q: I got arrested because I unfortunately decided to rest my eyes for a sec while I was parked at the gas station.

I was scratching a lottery ticket and I didn't think I was sleeping but the cop said he was standing there for "5 mins" I was arrested and charged with 2 DUI's. Blew 0.00 blood could not be drawn and urine sample was taken. I told the officer that my pee would not be clean but I was sober at the time. I was Released and my wives vehicle was impounded. They confiscated my scratchers and now I'm facing 2 title 28 dui charges. The whole situation and reason I was found to be impaired seemed totally unfair and unnecessary. With no prior offenses what is my best course of action and is there anyway to avoid the fines and possible charges when I was sober at the time of my arrest and truthfully just really tired. It was early afternoon and I just dropped my wife off at work. What do I do? Please help. This was in Peoria, AZ

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2 Lawyer Answers
Matthew Maerowitz
Matthew Maerowitz
PREMIUM
Answered
  • Criminal Law Lawyer
  • Phoenix, AZ
  • Licensed in Arizona

A: You should contact a criminal defense attorney as soon as possible. Peoria often draws blood so it is curious as you post blood could not be drawn. A urine test may have issues with the results. There also may be an issue as to driving or actual physical control. You should avoid posting any additional information on here as this is a public forum and anyone can view it.

Brian C. Soto
Brian C. Soto
Answered
  • Criminal Law Lawyer
  • Mesa, AZ
  • Licensed in Arizona

A: The State will be required to prove beyond a reasonable doubt before a jury of your peers the following elements of A.R.S. § 28-1381(A)(3) you must have been driving or in actual physical control of a vehicle; while there is was a drug defined in section 13-3401 or its metabolite in the your body.

Actual physical control is determined by the facts specific to your case, an example of some of those considerations are but not limited to: location of your vehicle (found in the lane of travel or legally parked); Whether the engine was running or not; your position within the passenger compartment; Where the key to the vehicle was located; Whether or not your headlights were on/off; whether or not heater/air conditioning was on.

While you've mentioned your blood will test positive for a drug, if the drug in question is marijuana, then you may have a viable affirmative defense, under AMMA.

AMMA provides an affirmative defense to § 28-1381(A)(3) if you can show that you were authorized to use medical marijuana (with passage of Prop 207, MMC is not required if the date of incident was after Nov 30, 2020) and that the concentration of marijuana or its impairing metabolite was insufficient to cause impairment. You would bear the burden of proving this affirmative defense by a preponderance of the evidence.

I would highly recommend you consult with an attorney licensed to practice in Arizona, whether appointed or private. With a mandatory minimum jail sentence, depending on your income, you may be eligible for a court appointed public defender. You also have the right to retain private counsel to represent you.

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