It seems commonsense that a person who is convicted of a Drug / Medication DUI offense, where no alcohol is alleged, or no alcohol is admitted to, would not have to have an Ignition Interlock Device placed on any vehicle they operate.
An Ignition Interlock Devices’ sole purpose is to test for the presence of alcohol, not drugs or medications. Nonetheless, the current standing of Arizona law requires that anyone convicted of a Drug / Medication DUI be required to have an Ignition Interlock Device placed on any vehicle they operate for one year, however it can be reduced down to 6 months if you the first 6 months correctly, and in the Motor Vehicle Division’s discretion.
However, there is an exception, if the Attorney knows what they are doing.
If you are arrested for a Drug / Medication DUI – charged with Arizona Revised Statute §28-1381(A)(3) – there is one way in which you would not have to have an Ignition Interlock Device if convicted of a Drug / Medication DUI.
Unfortunately, there are quite a few Defense Lawyers who are not aware of this law, nor how it needs to be utilized in order to ensure that the client does not have to have an Ignition Interlock Device on their vehicle for 6 months to one year, even though their case may have nothing to do with an allegation of alcohol.
A few things to keep in mind:
- This only applies if you are only convicted of a Drug / Medication DUI pursuant to A.R.S. §28-1381(A)(3). It does not work if you are also or only found guilty of DUI – Impaired to the Slightest Degree pursuant to A.R.S. §28-1381(A)(1); and
- This only applies if it is not only plead to as a 1st Time Drug / Medication DUI, but it is truly the 1st Time DUI, with no prior DUI convictions within 84 months; and
- This only applies if it is a Misdemeanor Drug / Medication DUI pursuant to §28-1381(A)(3), without any accompanying Felony charges. (This does not work as part of an Endangerment Combo in Superior Court); and
- This only applies if arrested prior to January 1, 2017. A new law goes into effect for those arrested on or after January 1, 2017, so this provision of the law does not apply to those individuals. (The law is actually changing for the better as of January 1, 2017, and will make an Ignition Interlock Device discretionary, rather than required, on any type of Drug / Medication DUI).
If a person is arrested for DUI with the allegation of having drugs or medications in their system, and if they will be pleading Guilty to a DUI offense that involves drugs or medications in their system, not alcohol, then it is nearly always better to plead Guilty to DUI – Drug or Active Metabolite in System, pursuant to §28-1381(A)(3).
Nearly everyone who is charged with a DUI, alleging drugs and/or medications in their system, will end up with at least two counts of DUI.
Under Count 1, a person will normally be charged with DUI – Impaired to the Slightest Degree by the Consumption of Alcohol, Use of Drugs or Medications, or Use of Vapor Releasing Substance, or a Combination Thereof, pursuant to A.R.S. §28-1381(A)(1).
Under Count 2, a person would also normally be charged with DUI – Drug/Medication or Its Active Metabolite in the Person’s System, pursuant to A.R.S. §28-1381(A)(3).
Count 1 requires that the prosecutor prove that the Defendant was driving or in Actual Physical Control while impaired at least to the slightest degree by the use of the drugs and/or medications (in a case where no alcohol is involved). Count 2 merely requires that the person be driving or in Actual Physical Control while having a you and him drug and/or medication, or its active metabolite, in their system.
It is a defense to Count 2 if the medication that was being taken was not only prescribed, but was being taken as prescribed. However, that defense is not available for Count 1.
Generally, anyone convicted of a 1st Time Regular DUI, with no prior DUI convictions within the past seven years (based on the arrest dates), would be required to have an Ignition Interlock Device on any vehicle they operate for one year, however it could be reduced down to 6 months if the first 6 months were done correctly, and in the discretion of the Motor Vehicle Division.
However, there is a law for those people arrested on or before December 31, 2016, which states that the Motor Vehicle Division shall remove the requirement that a person maintain a functioning certified ignition interlock device if the person is convicted of A.R.S. §28-1381(A)(3), and the court determines that no alcohol education or treatment is required. Arizona Revised Statute §28-3319(G).
The downside to dealing with a case as a Drug / Medication DUI is that the person’s license would be revoked for one year, with no ability to get any sort of restricted license.
That law is changing as of January 1, 2017, however, the change in the law will only apply to those persons arrested on or after January 1, 2017.
For those people who are charged with a Drug / Medication DUI on or before December 31, 2016, who is not able to get their case dismissed, or negotiated to a better plea agreement; whether convicted of DUI – Impaired to the Slightest Degree, or DUI – Drug/Medication, that person is going to have their license revoked for one year, with no ability to get any sort of restricted license.
However, if the Defense Lawyer knows what they are doing, it is possible to work things out so that the Defendant would not have to have an Ignition Interlock Device placed on any vehicle they operate at all.
The Defense Attorney really needs to know what to do in order to arrange for this benefit for the client. Essentially, what needs be done is:
- If the case cannot be dismissed, or negotiated down to a non-Drug DUI plea agreement, the attorney needs to negotiate a plea agreement that allows the Defendant to plead guilty to A.R.S. §28-1381(A)(3), with the other count of DUI pursuant to A.R.S. §28-1381(A)(1) being dismissed.
- At sentencing, ask the judge to apply the provisions of A.R.S. §28-3319(G), and find that no alcohol education or treatment is required.
- When filling out the Revocation Packet approximately one year later, in an attempt to reinstate your driver’s license, the documentation filled out by the Court has to be filled out correctly. This can be one of the biggest problems, because a year later, the Attorney is likely not still representing you, and you want to believe that the Court will fill out the paperwork correctly, but it will be on you to ensure that everything is done correctly.
After the one-year license revocation is up, the Defendant will need to complete what is called a Revocation Packet.
The Revocation Packet is broken up into specific forms, and requires the involvement of not only the Court, but a substance abuse counselor as well.
Here is an example of a Revocation Packet, however, because documentation is constantly changing, this may not be the most updated version: www.dropbox.com
The most important form for being able to avoid the Ignition Interlock Device is Form B.
This is something that is filled out by Court staff, and unfortunately, can be accidentally filled out incorrectly. If filled out incorrectly, the person then have an Ignition Interlock Device on their vehicle, even if the Attorney set everything up correctly with the Court so that person would not have to have one.
Here is what the form, in its current iteration, looks like:
This is the most important part:
The highlighted parts below absolutely have to all say Drug. None of the Alcohol boxes can be checked:
If any of the above highlighted areas are checked with Alcohol, then it does not comply with A.R.S. §28-3319(G), and you will be required to have an Ignition Interlock Device on any vehicle you operate for one year, however it may be able to be reduced down to 6 months if you do the first 6 months correctly.
If the Court staff fills out the form incorrectly, is important to ensure that they correct their mistake. If the judge did what was requested of them by the Defense Attorney, they should have written in their case file that no alcohol education or treatment was required pursuant to A.R.S. §28-3319(G).
If the Court staff fills out the paperwork incorrectly, and you sign off on it, and it is ultimately turned into the Motor Vehicle Division, you will end up having to have an Ignition Interlock Device on your vehicle, despite your Attorney’s best efforts to prevent it.
Contact the Law office of Brian D. Sloan at 480-900-0384 or 602-900-0384 for a Free Initial Consultation.