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Are Field Sobriety Tests in DUI cops use Junk Science?

In 2012, Arizona courts incorporated federal rule of evidence 702, which codified the United Supreme Court's Daubert decision. The current Arizona Rule 702 reads:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

The Daubert standard is completely different from the previous Arizona Frye standard, which strictly focused if the technique used was "generally accepted in the scientific community". Under Daubert the Supreme Court defined "scientific methodology" as the process of formulating hypotheses and then conducting experiments to prove or falsify the hypothesis and enumerated criteria for establishing the "validity" of scientific testimony:

1. Empirical testing: whether the theory or technique is falsifiable, refutable, and/or testable.
2. Whether it has been subjected to peer review and publication.
3. The known or potential error rate.
4. The existence and maintenance of standards and controls concerning its operation.
5. The degree to which the theory and technique is generally accepted by a relevant scientific community. (Daubert v. Merrell Dow Pharmaceuticals, Inc.

While Arizona Courts have previously admitted field sobriety tests and horizontal gaze nystagmus tests under the Frye standard, the Arizona Supreme Court has not ruled on this issue under the new Daubert standard.

Other courts, however, have addressed this issue. In U.S. v. Horn,:

Thus, based on the foregoing, I conclude that the SFST evidence in this case does not, at this time, meet the requirements of Daubert/Kumho Tire and Rule 702 as to be admissible as direct evidence of intoxication or impairment.

The Montana Supreme Court concluded a trial court abused its discretion in admitting HGN results even though the government proved the officer was qualified to administer the test and conducted it as instructed:

This testimony shows that Officer Kennedy was trained to administer the HGN test and, in fact, administered the HGN test on Hulse in accordance with this training, and, therefore, he was qualified to testify as to both his administration of the HGN test and his evaluation of Hulse's performance.
However, nothing in the evidence establishes that Officer Kennedy had special training or education nor adequate knowledge qualifying him as an expert to explain the correlation between alcohol consumption and nystagmus, the underlying scientific basis of the HGN test.
Accordingly, we conclude there was insufficient foundation for the admission of evidence concerning the HGN test and the District Court abused its discretion when it summarily denied Hulse's motion in limine and allowed Officer Kennedy to testify as to Hulse's HGN test results.

A Connecticut Court of Appeals ruled the same way:

We conclude, therefore, that the court abused its discretion in admitting Kovanda's testimony regarding the results of the defendant's HGN test without requiring that the state satisfy the criteria for the admission of scientific evidence as set forth in Daubert.(State v. Russo)

Finally, in the most extensive analysis of this issue, the New Mexico Supreme Court held the results of the HGN should not have been admitted in a DUI trial.

We also hold that testimony as to the results of a Horizontal Gaze Nystagmus (HGN) test should not have been admitted at trial, because the State failed to lay a proper foundation for the admission of this expert testimony. Although the State qualified a police officer as an expert in administering the test, it failed to show the evidentiary reliability of HGN testing. (State v. Torres)

The New Mexico Supreme Court noted that Arizona courts had admitted HGN results under the Frye standard:

Unlike New Mexico, the Arizona courts have rejected Daubert in favor of the "general acceptance" standard articulated in Frye, 293 F. at 1014. See State v. Tankersley, 191 Ariz. 359, 956 P.2d 486, 491 (1998). Given that HGN testimony had been ruled admissible in Arizona courts four years prior to City Court, see State v. Superior Court, 149 Ariz. 269, 718 P.2d 171, 181 (1986) (en banc) we do not find it surprising that the prosecution met the "general acceptance" standard in that case without any additional testimony regarding the scientific principles upon which the HGN test is based.

But under the New Mexico Daubert standard, that evidence is not admissible:

Although the State presented evidence at trial as to Officer Bowdich's training and experience with HGN testing, we conclude that his training and experience are not sufficiently probative of the test's evidentiary reliability...

As stated previously, Arizona no longer uses the Frye standard and any evidence must meet the Daubert standard. In other words, while the results of field sobriety tests have been admitted in Arizona DUI cases for ages, maybe that will soon change...

Arizona Underage DUI and Driver's License Suspensions

What happens to someone who under 18 and is charged with a DUI? Because the person is under 18 years old at the time of the offense, the person will go to juvenile court and not be tried as an adult, right? How long will the driver lose their license for? Can they drive to school?

First, even though a driver may be under 18 at the time of the offense, prosecutor's offices around Arizona usually wait until the driver turns 18 and charge the driver as an adult. That means a minor under 18 is facing adult time and consequences. That means the same punishment as far as jail time and fines as a 50 year old charged with a DUI even though during the investigation the police might not advise the driver of the possibility of being charged as an adult (see "A DUI suspect's consent to a blood draw must be voluntary" regarding In re Tyler. There could be a voluntariness issue if police do not advise a minor he or she is facing adult charges in adult court.).

Second, a minor will always be charged with 4-244.9, which I call "baby DUI" because it is a crime for someone under 18 to drive with any alcohol in their system. The worst part of this charge is that it requires a 2 years license suspension from MVD, with restricted driving privileges if ordered by a judge and if the driver installs an interlock device for two years.

This is where it gets tricky. If someone is over 18, they shouldn't lose their license for two years, just the 90 days under admin per se. But even though a minor will treated as a adult in the criminal system, MVD will still treat the driver as a minor for MVD. That means a minor charged as an adult could lose their license for 90 days under admin per se because they were charged as an adult and then lose their license for another 2 years because MVD treats them as a minor. For more information, see 28-3320:

Suspension of license for persons under eighteen years of age; notice; definition A. ... the department shall immediately suspend the driver license or privilege to drive or refuse to issue a driver license or privilege to drive of a person who commits an offense while under eighteen years of age as follows: 1. For a period of two years on receiving the record of the person's conviction for a violation of section 4-244, paragraph 34, section 28-1381 or section 28-1382.

Many lawyers are not aware of ARS 28-3320 and assume that if a prosecutor drops the 4-244.9 allegation there will not be a 2 year suspension.

ARS 28-1402 and Interlock device for Reckless Driving in Arizona

If I were to ask 100 people at random, "which is worse, a second time DUI conviction or a reckless driving conviction after a previous DUI conviction?", I am certain those 100 people would all say, "obviously, the DUI is worse!". But while that may seem like the obvious answer, it is not necessarily the case.

If you are convicted of a reckless driving within 24 months of a previous reckless driving or a DUI, you will have to spend at least 20 days in jail. If you are convicted of a second DUI within 84 months of a previous DUI, you will have to do at least 30 days. But the most significant reason is not because of what happens at court, but what the Arizona Motor Vehicle Department will do with your driver's license.

If you have been convicted of a DUI in the previous 8 years- important, MVD goes back 8 years, not 7 years like the courts do- you will have your license suspended for 12 months. The same is true for a reckless driving, no license at all for 12 months. But with the second time DUI conviction, if you install a certified ignition interlock device you will have a restricted driver's license after 45 days. That means, in general, after a month and a half of no driving, if you install the interlock you can drive to and from work, while at work, to school, court ordered counseling, legal reasons, and health reasons (see ARS 28-1402 for specifics). The 45 no driving period is upon conviction. With a reckless driving conviction, that option is not available and the entire 12 month suspension is flat, ie, no driving for any reason. Note there could also be another suspension for 90 days without the right to drive at all from MVD directly. Also, a DUI after a reckless driving conviction could trigger both the administrative 90 days no driving at all and an additional 12 months no driving at all.

Couple of important points, if you are driving with an interlock device and are charged with a DUI, even if your license is not suspended, you will be charged with a felony or class four aggravated DUI. If you are convicted of a class four aggravated DUI, that means you will have to serve at least 4 months in prison, maybe even a few years, even if it is a first offense.

Second, if you are charged with a second time, misdemeanor DUI and install an interlock device so you can have a restricted driver's license after 45 days, that does not count towards the interlock device requirement that the court can order after a second conviction. The interlock device requirements that MVD orders and that the court will order do not run concurrently and do not overlap. The important point here is that MVD can suspend your license even though the criminal court does not convict you.

Finally, just this year, the Arizona legislature removed the provision that a driver at work did not have an interlock device while driving work vehicles so long as he was at work, driving a work vehicle engaged in work, and his employer had sworn out an affidavit. Now, even if you are at work and you drive a company vehicle, any vehicle you drive must have an interlock device installed.

Why the legislature changed the rule I am not sure. But I think this change is partly the reason why the new Phoenix police chief is automatically firing all police officers charged with a DUI. Before a police officer with a DUI conviction- trust me, there are plenty of them- did not have to have an interlock device while driving his or her squad car. That has now changed.

Arizona DUI Ruling: Cooperman and Partition Ratios

Even though most law enforcement agencies in Arizona use blood draws to determine the blood alcohol concentration (BAC) in DUI cases, some jurisdictions still use breath test machines. These machines are commonly known at intoxilyzers or breathilyzers. Most notably, the city of Tempe and the city of Tucson, as well as some smaller jurisdictions state wide, still use breath machines.

The reason most law enforcement agencies have moved to blood instead of alcohol is because the Arizona DUI statutes define a DUI according to the concentration of alcohol in blood, not breath. That means a blood test is a direct measurement while a breath test is an indirect measurement. And that is part of the reason why direct blood tests are allegedly twice as accurate as the breath test.

According to government prosecutors, a breath test result can be converted to blood alcohol concentration by something known as the partition ration. Simply stated, the partition ratio is the variable that is used convert a breath test reading into a blood alcohol reading. I use the word variable because it is exactly that; the partition ratio changes on a person to person basis. It is not constant for all people.

Despite the fact the partition ratio is not constant, the Arizona Court of Appeals ruled in Guthrie v. Jones that the partition ratio is constant for every person. That means the defense cannot introduce evidence that the standard partition ratio (2100:1) is wrong in a particular case, and thus, the BAC determination is too high. That evidence is simply irrelevant, despite what scientists say is actually the case.

Since the Guthrie decision in 2002, an open question remained on which charges the partition ratio was irrelevant. That is because almost all DUI cases have at least two counts: impaired while driving under the influence of alcohol (A1) and driving with a BAC above the legal limit (A2 or per se charge). The Guthrie court only ruled that partition ratio evidence was forbidden with regard to the A2 charge, but what about the A1 charge?

That question was just now settled in State v. Cooperman. The court ruled that with regard to the A1 charge only:

This case addresses (a) whether partition ratio evidence is admissible in a prosecution for driving while impaired in violation of A.R.S. § 28-1381(A)(1) if the state elects to introduce breath test results only to prove that the defendant had "an alcohol concentration of 0.08 or more within two hours of driving" in violation of A.R.S. § 28-1381(A)(2),and (b) whether evidence relating to the variability of partition ratios in the general population is relevant to a particular defendant's state of impairment. We conclude that such evidence is relevant and therefore may be admissible to show the defendant's lack of impairment.

If, for example, a person is charged with both an A1 and A2 charge, and let's say the BAC is allegedly .100, then the defense can prove the partition ratio is off, and thus the .100 too high, for the A1 charge. But that very same evidence would not be relevant to the A2 charge.

If this result sounds more like a subtle resolution conjured up by legal philosophers on a college campus than an actual solution to a real problem, you are not alone. That being the case, the question remains how exactly can this absolute gem of legal dogma be applied to real cases. Will a jury be able to distinguish the evidence proving variability of partition ratio for the A1 charge but simply ignore it for the A2?

The better solution would have been for the Arizona Supreme Court to accept the overwhelming scientific evidence that partitions ratios vary from person to person, and allow the defense to prove that fact, and that the BAC result is too high for all the charges.

The Guthrie decision is premised on the fact the Arizona Legislature simply said the partition ratio is fixed at 2100:1 and thus the court does not have the power to overturn that legislative, certainly not scientific, fact. That was a grave mistake. The legislature cannot create a judicial procedural rule. It can only create substantive law. Only the judiciary can create procedural rules, ie, rules of evidence, criminal procedure, civil procedure, etc... Fixing the partition ratio was clearly a procedural rule that is within the strict domain of the judiciary.

Somehow, if the legislature passed a law saying the Universe was created in only 6 days, I have no doubt the Supreme Court would strike that law in a matter of minutes. The same should be done with regard to the partition ratio.

You can see the Cooperman decision here: cooperman decision.pdf

P.S. In a huge ruling, Superior Court Judge Bernstein has thrown out the BAC results in 11 Scottsdale DUI cases because of a faulty machine, a machine Scottsdale Crime is still using. See Judge tosses Scottsdale DUI cases because of Crime Lab Incompetence.

Veteran's Court in Phoenix

In a recent, and very encouraging development, the city of Phoenix municipal court has started a Veteran's Court program. That is a program that is available only to veterans. To qualify, one must have served in United States military. It does not matter if the service was in the reserves or active duty, the type of discharge does not matter, combat duty is not required, and to qualify no deployment is required.

In other words, so long as anyone was in the military and received any sort of discharge, presumably even other than honorable or even dishonorable discharge, they are qualified for Veteran's Court. So what is the benefit of Veteran's Court?

In the context of a DUI case, a veteran who is facing DUI charges can have the charges reduced to the minimum 28-1381(A)(1) regardless of the blood alcohol content alleged. For example, even if someone is facing a super-extreme DUI charge, which means a minimum sentence of 45 days in jail, that veteran can have the charge reduced to the minimum DUI charge. Even better, even though there is a statutory requirement for at least one day in jail for even a first time DUI conviction, that veteran can avoid jail completely so long as he is compliant with all court ordered treatment.

For example, imagine a non-veteran convicted in the city of Phoenix with a BAC above .20. He would have to do 45 days in jail, which usually means 9 days in the county jail and another 5 days home arrest. But a veteran would not any jail time so long as he complied with the treatment the court ordered. Keep in mind, however, that treatment could be onerous in its own right: it could very well include inpatient treatment for months.

The idea behind Veteran's Court is that our veterans should not suffer criminal sentences as a result of their service. And while the category of "veteran" may seem broad, it is better to make the net wide and include as many veterans as possible.

What does 20% mean for an Arizona DUI conviction?

There is a joke that lawyers ended up in law school because there aren't any math problems on the LSAT. Despite that impression, the Maricopa County Superior Court created a math problem worthy of Noble Prize winning physicists.

The issue is reduction of a DUI jail sentence to 20% of "initial term of incarceration" under A.R.S. § 9-499.07(N)(3). For example, if someone is convicted of a first time super-extreme DUI under ARS 28-1382(A)(2) the jail sentence is 45 days in jail. But under a new law called CERTA, if a driver installs an interlock device under A.R.S. § 28-1382(I), then the minimum jail term is only 14 days in jail.

So the question remains are judges supposed to calculate 20% of 45 days or 20% of 14 days. If the first scenario is correct, the driver would serve 9 days in jail, 5 days home detention, and the remaining 31 days are suspended. If the second scenario is correct, then the sentence is 3 days in jail, 11 home detention, and the remaining 31 days are suspended.

My experience has been the interpretation of this law differed from judge to judge without a clear answer anywhere. In fact, the city of Peoria judges were interpreting the jail time under the second second but then doubling the days on home arrest. Where they got that interpretation I have no idea.

On appeal, the Superior Court of Maricopa County issued a preliminary ruling holding the first scenario is correct. You can see the ruling here 45422747-Jenja sentencing.pdf.

Medical Marijuana Card No Defense to DUI 28-1381(A)(3) Charge

Even though Arizona voters recently passed a medical marijuana law, Arizona prosecutors are not giving the new law much respect. As I have written about before, Arizona has an illegal metabolite statute, 28-1381(A)(3) that makes it illegal to drive a motor vehicle with an illegal drug or metabolite in the driver's system.

That means even if someone is driving perfectly fine without any sign or symptoms of impairment, that driver will be guilty of a DUI just because he or she has an illegal drug in their system, even if it is only the metabolite and not the active ingredient (see "Arizona court ruling upholds DUI test for marijuana".

An appeals court has issued a ruling that upholds the right of authorities to prosecute pot smokers in Arizona for driving under the influence even when there is no evidence that they are actually high.

The ruling by the Court of Appeals focuses on the chemical compounds in marijuana that show up in blood and urine tests after people smoke pot. One chemical compound causes drivers to be impaired; another is a chemical that stays in people's systems for weeks after they've smoked marijuana but doesn't affect impairment.

The court ruled that both compounds apply to Arizona law, meaning a driver doesn't have to actually be impaired to get prosecuted for DUI. As long as there is evidence of marijuana in their system, they can get a DUI, the court said.

The ruling overturns a decision by a lower court judge who said it didn't make sense to prosecute a person with no evidence they're under the influence.

But what is even worse than that is that if someone has a medical marijuana card that is not a defense to the metabolite charge. That is because while having a valid prescription is a defense to the metabolite charge, the medical marijuana card is a "certification", not a prescription, and thus no defense. That means an Arizona driver can consume marijuana legally pursuant to the medical marijuana statute, drive perfectly fine, and still convicted of a DUI even though they did not have any active ingredient in their system.

Also, the Arizona Department of Motor Vehicles (MVD) started conducting administrative hearings to possibly suspend the driver's licenses of drivers cited with a drug DUI. The important point here is that a driver can lose their license even if they are not convicted at court. I recently asked a MVD judge if MVD considers a medical marijuana card sufficient to keep a driver cited with a marijuana DUI from losing their license, and she told me MVD has not yet decided on the issue.

If you have been charged with a DUI, call me right away for a consultation at 602-955-1985.

Search Warrants for Seizing a DUI Suspects Blood

Many Arizonans are not aware of a serious trap in the DUI laws. Most people assume that the police must obtain a search warrant to seize a person's belongings if the person does not consent to a search. After all, isn't that what we all learned in elementary school about the American Revolution? And since no possession is more important to a person than that person's body, one would naturally assume that the police have to get a search warrant to get blood from a DUI suspect. Right?

That answer is complicated. Under the implied consent laws of Arizona, every Arizona driver has already "consented" to the police taking his or her blood upon probable cause for believing the driver has committed a DUI in Arizona. That means once you sign for your driver's license at MVD, you have given the police permission to take your blood, whether you say so or not when actually arrested, when the police arrest you for DUI. So what happens if you are arrested for DUI but don't let the police take your blood voluntarily and you tell them to get a warrant?

That is exactly what the police will do: they will get a warrant. That is a process that has gotten a whole lot easier lately.

Phoenix police officers can now get a signed search warrant for a blood sample from a suspected drunken driver within minutes from their patrol car. Officers don't have to drive to a station, type or write up a warrant, fax it to the court and then wait up to an hour or more for a faxed approval from a judge.... An officer stopping a suspected impaired driver must obtain a search warrant if the driver refuses to provide a blood sample. (see "Search-warrant process in DUIs faster for Phoenix police" by Cecilia Chan")

So no big deal right? A driver doesn't let the police take his or her blood and the police get a warrant through a streamlined process. What could be more American than a citizen enforcing his Constitutional right to be free from illegal searches and seizures? You can get my stuff but only if you get a warrant. That, to most citizens, is as American as apple pie.

Unfortunately, however, that is not the law. If a DUI suspect does not consent to a blood draw upon probable cause for believing the driver has committed a DUI and the police get a warrant, the consequence is you will lose your license not for the standard 90 days (standard for first time misdemeanor DUIs), but for a whole year. The 90 day suspension is very limited. The first 30 days are a complete ban on driving, but the final two months include the right to drive for work, school, health, and legal reasons. This is what is called an admin per se suspension.

The implied consent suspension (refusal) is a complete ban on driving for 90 days, but then a driver is eligible for a restricted license for the remaining 9 months if he or she installs an interlock device in their car. That is a change in the law from a few years ago when the one year ban was a total ban on driving for the entire year.

If someone is arrested for a DUI and the police got a warrant for the driver's blood, does that end the matter? Is there a way to challenge the police allegation the driver refused and deserves a one year suspension? Yes there is. If a driver, or his attorney, requests a hearing with MVD within 15 days of the date of stop and arrest, the MVD will have an administrative law judge determine if the police was correct the driver refused. If the driver does not request a hearing however, the one year ban will start automatically 15 days after the arrest date.

So what should someone do if stopped by the police for a DUI? How is an average citizen supposed to know what tests he has to take, what he has to do, and what he has a right to refuse to do? Simple, if you are stopped for a DUI, always ask to talk to a lawyer. The police must give every DUI suspect a "reasonable opportunity to consult with a lawyer" so long as that does not interfere with the investigation. What that usually means is 20 minutes of privacy with a cell phone and phone book.

While most police officers get this process right, you would be surprised how many don't and fudge the right to counsel. Fortunately for the public, Arizona courts take the right to counsel very seriously and hold police officers to strict compliance. The benefit of speaking with a lawyer is he will tell you what you must do and what not do. Usually that means don't answer any questions, don't do the field sobriety tests, don't do the portable breath test, be polite, and if you are arrested and the officer reads you the admin per se form: comply with it. Most importantly, once you are released go to a hospital to have them draw your own blood specimen to challenge the police blood draw.

While the police say they draw two tubes of blood for you and you can get an independent test done yourself, there are a couple of problems with that: first, if the police made a mistake with the blood draw itself, ie, tubes not preserved, mis-labelled, etc..., testing their tubes won't catch that. Second, if you request your B specimen for an independent test, but the results are not different from the "official" government result, the prosecutor can mention you requested a independent test during trial. But if you got your own specimen without asking the police, they will have no way of knowing what the results are.

Again, at the risk of being tedious, the only thing to remember is call a lawyer if you have been stopped for a DUI, the sooner the better.

No Interlock Required for Illegal Drug DUI in Arizona

One of the biggest problems of a conviction for an illegal drug DUI in Arizona is that there is an ignition interlock requirement if somebody is convicted of that charge. That means, for example, even if somebody has never had a drink of alcohol in their entire life, but they are convicted of having illegal drug in their system, they would have to get an ignition interlock device installed in their car for 12 months.

Of course, the point of the ignition interlock device is that it keeps somebody from driving drunk. It does not, however, have the ability of keeping somebody who is high on drugs from driving their car. And even more to the point, the ignition interlock device will not prevent somebody who has an illegal metabolite, for example something like carboboxy THC, in their system from driving.

Fortunately, in the last year that has all changed. Now, if somebody is convicted of an illegal drug DUI only, and they pass an alcohol screening and assessment that shows they are not at risk for driving drunk, they do not have to get an ignition interlock device in their car. This comes up most commonly when somebody smokes marijuana and they have the metabolite in their system. Before this change in the law that driver would have to have an ignition interlock device in their car for 12 months. But so long as that person does not have a drinking problem, they will now not have to get the ignition interlock device.

But the penalties for a drug conviction are still worse than drunk driving. That is because the first time alcohol DUI, even super extreme DUI, the license suspension is only for 90 days. And only the first 30 days of that 90 day suspension is a flat revocation. During the final 60 days of that 90 day suspension a driver is eligible for restricted permit, meaning they can drive to and from work and to and from school.

But with an illegal drug conviction there is a flat one year suspension of a license. That means the person he cannot drive his vehicle for any reason whatsoever. That means if somebody is convicted of illegal drug DUI he cannot drive to and from work for one year.

Home Arrest and Detention for an Arizona DUI conviction

When someone is convicted for a DUI charge in Arizona, one of the most questions that people ask is "can I do home arrest?". It is an understandable question as most people would rather serve their sentence at home instead of the county jail.

The most important point in answering this particular question is in "which jurisdiction did the DUI conviction happen?". That is because a DUI defendant can only serve his or her sentence under home arrest if the particular jurisdiction has a home arrest program in place. For example, the city of Peoria and Phoenix both have a home arrest, or in legalese "home detention" program, but some other jurisdictions do not.

The statutory breakdown for the home detention if found in Arizona Revised Statute 11-251.15, which basically states any DUI defendant must serve at least 20 percent of the minimum required jail time in the county jail, but can serve the remainder of the sentence under home arrest.

For example, for an extreme DUI, in which the minimum sentence is 30 days in jail, 6 days would be served in county jail and the remainder of the sentence under home arrest or detention. To be eligible for home arrest, judges require at least one year installation of a certified ignition interlock device.

My own experience has been that every jurisdiction, and seemingly, each judge within particular jurisdictions, have their own formula for deciding home many days one must serve in county jail and how many days under home arrest. For example, in the City of Phoenix, for an extreme DUI, a DUI defendant will serve 6 days in the county jail and then 3 days under home arrest. In Peoria, however, DUI defendants will serve 2 days in county jail, and 14 days under home detention. For a super-extreme DUI, a Phoenix DUI defendant will serve 9 days in county jail and 5 days under home arrest, while in Peoria, it will be 3 days in county jail and 22 days under home detention.

No Interlock required for Arizona Marijuana and Illegal Drug DUIs

One of the ironic things about a DUI charge in Arizona was that when someone was convicted of a DUI because of an illegal drug, for example, marijuana, that person would lose his license for year, a total ban, and still have an ignition interlock requirement. 

In other words, even someone who has not had a drop of alcohol to drink in their entire life, imagine a pot smoking hippie who doesn't like the taste of alcohol or an raver using Ecstasy, if convicted of a drug DUI, that person would have to have an interlock device installed for at least a year before getting an unrestricted license. 

The requirement of a year interlock device was on top of the fact the license would be revoked, not suspended, for one year. If someone is convicted of a regular alcohol dui in Arizona, then the license suspension is usually for 90 days. That means the first 30 days the person cannot drive for any reason, but the final 60 days has a restricted license for things like work and school. 

But with the ARS 13-1381(A)(3) illegal drug metabolite charge, the license is lost for one year without any right to a restricted license at all. Fortunately, however, with the recent changes in Arizona DUI laws, Arizona does not automatically require and ignition interlock device if the DUI date of stop was after January 1, 2012 and if upon court ordered alcohol screening and assessment (SASS), the counseling does not believe alcohol treatment is needed. 

However, the same MVD revocation of one year would still apply. That fact is particularly sad as someone who refuses a chemical test altogether is eligible for a restricted license after 3 month suspension upon installation of an ignition interlock device.