Interviewer: If the case is retried, how exactly would the process differ from the original?
The Prosecutor Will Reexamine the Evidence, Including Any Admissions Made by the Driver
Brian Sloan: The process isn’t that much different. It’s just a matter of knowing that it is not going to be just a strict liability law simply for having the metabolite of marijuana in your system. What the prosecutor is going to look at is what type of admission may have been made. For example, if someone admitted to smoking marijuana.
They will examine how they did on the field sobriety test and how they did on the horizontal gaze nystagmus test. That is what that the prosecutor’s looking at in deciding whether to move forward with the case and to continue fighting the case.
Admissions made by the Driver or Their Performance on the Field Sobriety Tests May Not Be a Factor If the Driver’s System Only Shows the Inactive Marijuana Metabolite
However, if all the State has shown is that there is the inactive marijuana metabolite in a person’s system, regardless of how that someone did on the field sobriety test or what they admitted to, there still isn’t any actual evidence of impediment based on any sort of drugs, medication, or alcohol. This is unless there’s something else that shows a low level of alcohol in the system or possible some other type of drug in the person’s system, such as a medication.
Your Case Might Not Be Tried before the Same Judge
Interviewer: Will I have the same prosecutor, or judge, for that matter?
Brian Sloan: That’s up to the court system, and that is up to the prosecutor’s office. If the judge is still on the bench, it very well could go in front of the same judge. I would think probably not. This is because of a certain rule that says that if a person goes forward with sentencing, there’s a certain Arizona rule of criminal procedure that indicates that it would not be appropriate to later go back in front of that same judge. I’m not sure how that’s being applied. I haven’t had it happen to me yet.
In Some Recent Cases, the Prosecutor Has Agreed to Drop the Charges
In the different scenarios that I’ve had to deal with, I believe two of those situations the prosecutor has relented and agreed with me that the case should be overturned. I just heard back today from the court that they are going to be refunding my client all the money that they paid toward the fees, as well as overturning the suspension with the Motor Vehicle Division.
In Other Cases, the Prosecution Is Avoiding Overturning the Conviction because the Defendant Pled Guilty to Being Impaired in the Slightest Degree
In one of my other cases, the prosecutor spent a lot of time trying to figure out what they were going to do. In another case the prosecutor is fighting me, because my client pled guilty to being impaired to the slightest degree. They are arguing that the new Arizona Supreme Court case does not have anything to do with being impaired to the slightest degree which, in some ways, is technically true.
In the case that went up to the Arizona Supreme Court, the prosecutors dismissed the charge of being impaired to the slightest degree, realizing there was no evidence. So it’s just a loophole that the prosecutor is attempting to use to avoid overturning the case. This is because the person pled guilty to being impaired to the slightest degree even though they only had Carboxy-THC in their system, which is inactive.
In another one of my cases, my client pled guilty to having Carboxy-THC in his system by way of a urine test. I requested that it be overturned, and the prosecutor took it upon themselves to retest a blood sample that they happened to have of my client’s that was also taken on the date that he was arrested.
The blood sample showed the presence of active THC. So they are fighting me and saying that, “Despite him pleading guilty to having the marijuana metabolite in his urine, now we’ve tested the blood. The blood shows the active THC; therefore, the case should not be overturned.”
Can the Prosecution and the defense Present New Evidence If a Drug-Related DUI Case Is Being Retried?
Interviewer: If they’re retried, could the prosecutor present new evidence, or can the attorney present new evidence?
Brian Sloan: This is something that has not gone to a trial before; so they technically can present new evidence, as that one prosecutor has attempted to do by testing the blood which was not previously tested. The State is allowed to use the evidence that they have.
In some ways they can bring in new evidence, such as in the case where the blood sample was tested for the first time to determine whether there was active THC in the person’s system. It basically starts over at Day 1 and the prosecutor gets to determine what evidence they have to decide whether to prosecute the case and potentially send the case to trial.
If Your Case Is Overturned, You May Receive a Refund of Fines and Fees
Interviewer: If the case is overturned, you mentioned fees may get refunded. What sort of refund could someone be receiving back?
Brian Sloan: In the case of my one client, he will receive back the about $1600 in fines and fees that he had to pay to the court. We’re still in the process of figuring it out. I just heard back from the court that there’s still some confusion on what exactly the court was going to do but they are refunding about $1600 in fines and fees.
Money Paid toward Jail Costs or for an Ignition Interlock Device Will Not Be Refunded
I believe they should refund any payment made for jail time, although that might not actually happen, because it’s not the court that gets that money. It is the jail that gets that money for housing someone, so that might not be refunded.
Any money spent on an ignition interlock device would not be refunded. Any money spent towards counseling would not be refunded. It’s basically the fines and fees paid toward the court specifically related to the conviction, not any ancillary fines and fees, such as for an ignition interlock device, or for cab rates that a client had to pay to get around while their license was suspended.
If the Case Was Overturned, the Driver’s License Will Be Reinstated and the Suspension Will Be Removed from Their Driving Record
The biggest benefit is getting all the fines and fees back, as well as getting the license reinstated immediately. The plan is having the conviction itself and the suspension itself wiped from the Motor Vehicle Division records.
