In a recent Arizona DUI decision, a defendant appealed his conviction for aggravated driving under the influence. The case arose just after midnight when the police arrested him for driving under the influence and performed an inventory search of his car. Inside his car, they found a pill bottle that contained Oxycodone. They took him to the police station, and he consented to a blood draw.
His blood alcohol level was .037, and he had 29 nanograms per milliliters of Oxycodone in his blood. At his time of arrest, his driving privileges were suspended. He was indicted for a count of aggravated DUI while impaired to the slightest degree, as well as aggravated DUI while Oxycodone or its metabolite was in his body and possession of Oxycodone. The last count was dismissed before trial.
At trial, the defendant presented evidence that he’d filled a prescription for immediate release Oxycodone shortly before, and the amount found in his blood fell within the therapeutic range. He also asked for an affirmative defense jury instruction based on A.R.S. § 28-1381(D). This law provided that someone using a drug as prescribed by a licensed medical practitioner wouldn’t be guilty of driving while drugged.
The prosecutor argued that in order to be entitled to this affirmative defense, the defense had to prove it was more likely than not that he had a prescription, prescribed by a doctor qualified to prescribe, and that he took it as prescribed.
The prosecutor agreed evidence of the prescription or printout should be allowed, but it argued that there had been no evidence shown about the doctor and his qualifications or that he was taking it as prescribed. It argued he’d mixed it with alcohol, which went against the manufacturer’s warning. The defendant’s attorney disagreed.
The court removed the affirmative defense instruction because it found that the prescription records bearing the doctor’s name weren’t certified, the defendant hadn’t shown evidence that the prescriptions were made by a licensed medical practitioner under the titles listed in the law, and the defense hadn’t provided evidence about whether or not the Oxycodone was being used in accordance with the actual prescription being made.
The jury found the defendant not guilty of aggravated DUI while impaired to the slightest degree. It did find he was guilty of aggravated DUI with Oxycodone or a metabolite in his body. He was sentenced to four months in jail and 30 months on probation.
The defendant appealed. He argued only that the lower court had permitted the prosecution to ask a forensic scientist an improper question. The exchange involved the prosecutor asking the scientist if she’d get in a car knowing that the driver had the blood alcohol level and Oxycodone levels the defendant had. The scientist had answered she wouldn’t personally do so.
The defendant argued this was improper because it was just the expert’s personal opinion, rather than a professional opinion that he was guilty. The appellate court disagreed. However, it found that the requested affirmative defense applied. The prescriptions printout included the doctor’s name and the pharmacist’s name, and the defense expert had provided the opinion that based on the printout and blood analysis report, his use was consistent with therapeutic use. The appellate court disagreed with the prosecution and lower court, finding he’d presented enough evidence upon which the jury could rationally find he’d met the elements of the § 28-1381(D) affirmative defense.
The prosecutor had mentioned to the jury it might hear that the defendant possibly had a prescription for the Oxycodone, but it didn’t matter because he was impaired by the Oxycodone and alcohol mixture. It again referenced the irrelevance of the prescription during closing statements. This misled the jury on the law, and no instruction was given to correct the misleading argument. The conviction was vacated.
If you are facing a DUI charge in Tempe, Chandler, Gilbert, or Scottsdale, consult criminal defense attorney James E. Novak. As a former Maricopa County Prosecutor, he’ll use insights obtained as a prosecutor to evaluate whether any of your constitutional rights was violated and develop an approach to your defense. He offers a free initial consultation to people facing active criminal charges in his area. If you have been charged with a crime, call or contact The Law Office of James Novak at (480) 413-1499 and speak directly with Mr. Novak.
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