What Can Aggravate DUI Charges?


In Arizona, what enhances misdemeanors are alcohol levels; is if the blood-alcohol level is proven greater than 0.15%, that will mean more jail time, higher fines and conceivably a longer interlock license requirement; if the level is 0.20% as a first or second offense, then the penalties are even greater. The biggest differences in sentencing between the first and second offense are for the extremes.  For a first offense 0.15%  extreme, for example, the jail term is 30 days on a first offense, of which 21 days can be suspended, if a person agrees to an interlock device for a year and alcohol counseling, which translates to 9 days jail which could be as little as 2 days jail, 7 days on home detention.  So, that could be a first offense extreme.

If it’s a second offense .15% Extreme and it’s enhanced because it occurred within seven years of the commission of the first, the minimum sentence is 120 days in jail, which can be reduced to 24 days in jail with 96 days of home detention, depending on the jurisdiction; for example, in Maricopa County Justice Courts, the second offense will draw 120 days in jail. The first factor regarding enhancements is whether it’s a first or second offense and the second is the blood-alcohol level. Whether it’s charged as a felony will be based on a few things; if there is a child 15 years old or under in the vehicle, it’s a felony even for a first offense; also if their license is suspended for just about any reason except no insurance, it can be charged as an aggravated DUI, which means a mandatory four months in state prison, if convicted.

In addition, two or more convictions within seven years of the commission of the first offense would make it an aggravated DUI, with a four month minimum in state prison, if convicted.  If there’s an accident with a serious injury that can be charged as an aggravated assault, which is a class 3 felony, and there’s mandatory prison involved if convicted.

Are Drug DUIs Harder To Defend than Regular DUI Cases?

For the most part, drug cases are better to defend than alcohol.  Juries have much less tolerance for driving under the influence of alcohol than when I first started this 42 years ago. Also DUI alcohol cases are they are much tougher than they used to be because the chemical testing has gotten better over the years, all of which makes alcohol cases harder to defend than drug cases. With drug cases, juries tend to be the opposite, so long as we’re talking about prescription drugs and not illegal drugs like heroin.  Many older people take prescription drugs and they may emerge as better jurors because they tend to be more sympathetic to driving with prescription drugs.  For DUI alcohol, older people tend make worse jurors than younger people.  In terms of defending cases, for the most part I would say drug cases are better.

Having said that – and this is the first time I’ve ever had a prosecutor try this – under one circumstance it is more difficult to defend a DUI Drug case than a DUI Alcohol because of a sort of glitch in the law with regard to prescription drugs. DUI Drugs are usually prosecuted as two charges; one is driving while impaired, and the second charge is for driving with a controlled substance within your body.  On that charge the prosecutor has to first show there is an active prescription present in the person’s body and that is all.  Then however the person can use an affirmative defense to that is that the person was taking the controlled substance in accordance with the requirements of the prescription, meaning they weren’t abusing the drug.  As long as we can show that, they’re not guilty of that charge.

In the case I have right now as of October 9, 2015, the glitch involves the question of who issues the prescription.  Under the DUI statute, the prescription must have been issued by a physician. The problem is, as in this case the prescription was issued by a licensed practical nurse, or LPN Nurse. Arizona is different than many states, in that some prescriptions can be issued legally issued by a LPN nurse. Some drug stores now have clinics where you can get a prescription that isn’t issued by a doctor, it’s issued by a LPN nurse and that’s perfectly legal however a LPN Nurse’s prescription not a valid prescription under the DUI statute.

In the case I have, the state will argue that my client is guilty solely because the prescription, although legally issued by a LPN nurse and not a physician. Although this point makes little sense, on this charge the prosecutor is seeking to convict my client because the wrong person, a NPN nurse, who is lawfully authorized to issue the prescription, issued the prescription and not a doctor.  The question rightly id what did my client do wrong?  Because a LPN nurse and not a physician issued the prescription, if guilty at trial, amongst other penalties, my client’s license will be revoked for 1 year of no driving. What makes it really bad is that there is very little impairment, so I have very good chance of winning that part of the case, driving while impaired, but she may end up being convicted solely because a nurse validly issued a prescription versus a doctor. This is the first time I’ve ever had a prosecutor try this, under that one scenario, driving under the influence of prescription medication is obviously much harder there, but overall, I like DUI Prescription Drug cases better.

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