In Arizona it may be possible to prove you’re not guilty of a Prescription Drug DUI without calling a witness.
I’m Gordon Thompson DUI & criminal attorney for 47 years.
In Arizona a person is guilty of a Prescription Drug DUI if a Prescription drug is impairing the person to slightest degree. If impaired, then they are guilty if they have a prescription drug in their blood. It is however an affirmative defense that they have taken that drug as prescribed by a medical professional.
An affirmative defense is one which the defendant must prove by the standard of preponderance of the evidence, which means more likely than not. The question then is how does the defendant meet their burden of proof that they took the drug as prescribed?
The State must first present evidence that there was an active prescribed drug in the blood sample obtained by the police from the defendant. This evidence is produced through the testimony of the crime lab analyst (criminalist) who did the testing. The State’s lab test results almost always report the quantity of the active drug found in the defendant’s blood. The criminalist is also often familiar with the drug and its effects.
Once the State has presented this evidence the burden shifts to the defendant to show the drug was taken as prescribed by a medical professional.
One way to prove the drug was taken as prescribed is to have the medical professional testify they prescribed the drug and, given the level found in the defendant’s blood sample, the defendant would have taken it as prescribed. This method can be hard to use because medical professionals do not like to testify in court.
A second way is by one of the Rules of Evidence, with or even without a witness. Pharmacy Prescription Records contain most of the information the defendant needs to prove they took the drug as prescribed. By law Pharmacy Prescription Records must show who was the prescribing medical professional and instructions as to how it is to be taken, that is the frequency and dosage. Pharmacy Prescription Records are out of court statements, known as Hearsay. Hearsay is inadmissible unless the particular statement falls into an exception to the Hearsay Rule. Pharmacy Prescription Records can be admissible as an exception to the Hearsay Rule. The Pharmacy Prescription Records must be kept in the normal course of business by someone whose job is to make the Record. Pharmacy Business Records are kept by the Pharmacy’s Custodian of Records.
The defendant can have the court issue a subpoena duces tecum directing the Custodian to appear at trial with the Pharmacy Prescription Records. The Custodian usually knows nothing of what is discussed in the Records and can only testify these are the requested Pharmacy Prescription Records. Pharmacy Prescription Records, however, are also admissible without actually having the Custodian testify in court. In response to the subpoena duces tecum, the Custodian can sign a certificate stating these are the requested Pharmacy Prescription Records and then send the Records to the court or the defendant’s attorney. The Pharmacy Prescription Records are then admissible without the custodian, unless the prosecutor can show the Records are not trustworthy.
According to the an important case, Pharmacy Prescription Records are trustworthy. This is because the pharmacy has a duty to keep accurate Pharmacy Prescription Records and failure to do so can result in loss of the pharmacy license and even jail. Therefore, Pharmacy Prescription Records are admissible as an exception to the Hearsay Rule.
The defendant’s attorney can then use Pharmacy Prescription Records to meet the defendant’s burden that it was more likely than not the defendant took the drug as prescribed. They can do so by asking the State’s criminalist if given the quantity found in the defendant’s blood sample the defendant could have taken the drugs as prescribed? If the criminalist says Yes, then the defendant has met the burden of showing the drugs were taken as prescribed and has done so without calling any witnesses of their own. Even better, the State’s witness has in effect said the defendant has met his burden of proof.
You may ask what if the criminalist says, No. That would be a problem, however in Arizona defendant’s attorneys have the right to interview witnesses prior to trial and so the attorney should know that prior to trial. If so then the defendant can call their own expert witness to say Yes, which is all right, however it is better to have the State’s criminalist say it.
Gordon Thompson
For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.
Website: https://www.GordonThompsonAttorney.net
Blog: https://www.GordonThompsonAttorney.net/blog/
