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Why is Arizona the Leader in DUI-Drugs Arrests? Follow the Money.

Why is Arizona the Leader in DUI-Drugs Arrests? Follow the Money.

Money. It drives everything. And, if you think that it plays no part in DUI enforcement, you must be living under a rock. Police want money. Prosecutors want money. Courts want money. And, yes–even DUI defense attorneys want money. The difference is, DUI defense attorneys don’t get millions of dollars in government grants.
In order to get a share of the government grant money, an agency has to provide a grant request detailing need, how the money will be spent, and showing how previous grant money was spent if the agency had a previous grant. Sometimes statistics on previous grants are as important, if not more important, than goals or need.

In a quote often wrongly attributed to Mark Twain, British statesman Benjamin Disraeli once said; “There are lies, damned lies and statistics.” The Arizona Governor’s Office of Highway Safety (GOHS) is a master of statistics.

According to the State of Arizona Highway Safety Plan for the Federal Fiscal Year 2014, (prepared by the Arizona Governor’s Office of Highway Safety, July 2013) the three-year average for impaired driving arrests from 2006 to 2008 was 9,130.The average increased by 138% to 21,689 during the following three years (2009-2011). The GOHS Plan was prepared for submission to the U.S. Department of Transportation, National Highway Traffic Safety Administration (USDOT/NHTSA).

According to the GOHS Plan, “Arizona is experiencing an alarming increase in arrests stemming from drug impaired driving.” They’re not joking–it is alarming–but it is not alarming because there are more drug-impaired drivers on the roadways. It is alarming because the police are casting such a wide net to include arresting people who are unimpaired, but who are taking prescription medications. Arrests are tracked for statistical purposes. Convictions are not. Thus, how does GOHS track effectiveness? By the number of arrests, of course. Grants were worth over $2.2 million for Arizona law enforcement agencies in 2014 NHTSA grant. The money went for overtime pay and equipment.

The GOHS Plan states: “Prescription drug abuse is an epidemic, and “medical marijuana” is legal. As drugged driving has become more prevalent in Arizona arrests have increased dramatically, from about 700 in 2008 to over 4,000 in 2012. In 2012, Arizona law enforcement agencies made over 820,000 traffic stops and 30,000 DUI arrests. This increase is most likely due to the focus on drugged driving recognition (DRE) training for law enforcement.”

It is not, however, prescription drug abuse that is fueling the dramatic increase in arrests, it is Arizona’s ridiculous DUI statute §28-1381(A)(3), which makes it illegal, per se, to drive with any one of over one-hundred drugs or metabolites (listed in §13-3401) in the driver’s system.

When drivers in Arizona are stopped for some minor traffic violation, they are often subjected to a relentless interrogation as to what medications they may be taking. If the driver informs the officer that he or she is taking any one of the medications listed in §13-3401, the police are told by prosecutors that is enough probable cause to arrest. And, it may very well be probable cause. In a system designed to arrest, prosecute and convict, police don’t have to take into account exculpatory evidence such as a driver waving a prescription pill bottle under the officer’s nose. Many people mistakenly think that the police are required to see some signs of impairment before they arrest, and traditionally that is the case, but there are many DUI arrests citing §28-1381(A)(3), alone.

Worse yet, prosecutors relish the thought of prosecuting such an offense, especially in agencies where they get merit-pay for taking a case to trial. Even where they don’t get merit-pay, individually, for taking a case to trial, the prosecuting agency will receive money from GOHS depending upon the perceived need for more funds. A statistical increase in DUI prosecutions, or any prosecutions for that matter, will be used as a need for more funds.

It is a affirmative defense to the (A)(3) charge that the driver has a valid prescription for the medication. Yet an affirmative defense is not a pre-trial defense. It is a defense which may only be used at trial. This means that once the prosecution has presented substantial evidence that a person drove and had one of the §13-3401 listed medications (or metabolites) in the driver’s system, that driver must then provide some credible evidence that he or she had a valid prescription. This may include presenting testimony by someone from the pharmacy that provided the medication to verify the prescription, it may be the driver’s doctor, or some other healthcare worker. It is not as easy as simply bringing the prescription bottle to court.

Moreover, some judges are persuaded that the affirmative defense includes testimony or other evidence that the medication was taken as prescribed. It does not. The statute provides the only requirement for a successful affirmative defense–that the driver has a valid prescription issued by a medical practitioner. The affirmative defense section §28-1381(D) plainly reads: “A person using a drug prescribed by a medical practitioner licensed pursuant to title 32, chapter 7, 11, 13 or 17 is not guilty of violating subsection A, paragraph 3 of this section.” If it were a requirement that the drug was taken as prescribed, the statute would read: “A person using a drug as prescribed by a medical practitioner . . .”. There is no requirement that the accused show that the medication was taken as prescribed, yet many judges buy in to this spurious and common prosecution-claim.

However, subsection (D) is no defense to the traditional DUI charge of §28-1381(A)(1) which makes it unlawful to drive while are impaired by alcohol or drugs. Thus, a person with a prescription for Valium, who is taking a therapeutic dose may be unimpaired, but if that person is abusing the Valium and is consuming more than the prescribed amount, that person would be in violation of the law if impaired. Therefore, in defense to the (A)(1) charge, it might be helpful to the defense to provide testimony from someone who has knowledge that the drug was taken as prescribed.

Many, many, people are consuming prescribed medications safely and as directed. Yet these people–the sick and the elderly–are being systematically victimized by a government that neither cares for them, nor understands how devastating a DUI arrest can be.

About James Nesci

James Nesci
James Nesci often defends cases well into the .30 blood-alcohol range. He has caught more than one police officer lying during cross-examination and some police officers have even refused to grant pretrial interviews to him without a prosecutor or their own counsel present. He was one of the lead attorneys on the Intoximeters® RBT-IV breath-testing issue in Southern Arizona which resulted in the suppression of breath tests in over 7,000 cases and the removal of the RBT-IV from the streets of Arizona. He also spear-headed the effort to obtain the manufacturer’s source code and software for the CMI Intoxilyzer 8000. Although the source code was never obtained, he almost single-handedly ground 90% of all DUI prosecutions within the City of Tucson to a halt for nearly three years and obtained breath test suppressions and dismissals in hundreds of DUI cases. In addition to “traditional” DUI cases which involve alcohol, Mr. Nesci is a recognized expert on the defense of DUI/Drugs cases. Whether they be legal-over-the-counter-medications, prescription medications or illicit drugs, such DUI cases are far more complex and present cutting-edge issues for the courts. He is qualified to administer Standardized Field Sobriety Tests under National Highway Traffic Safety Administration & International Association of Chiefs of Police Guidelines. In 2006, he was appointed Regent of the National College for DUI Defense, Inc. He was formerly the chair of the Curriculum Committee for the NCDD. Currently, he is the State Delegate Coordinator, a member of the Amicus Committee, Treasurer of the NCDD, Member of the Executive Committee and served as an oral argument judge for the Board Certification Committee. Mr. Nesci is the author of Arizona DUI Defense: The Law & Practice, a legal treatise written for DUI defense attorneys and published by Lawyers and Judges Publishing Company (now in its third edition) [www.lawyersandjudges.com]. In 1999 Mr. Nesci became a Sustaining Member of the National College for DUI Defense [www.NCDD.com]. In 2001, he was Board Certified by the National College for DUI Defense, Inc., which is a is recognized by the American Bar Association. He is one of only three Board Certified attorneys in the State of Arizona, and one of less than fifty Board Certified attorneys in the nation (as of January, 2012). Mr. Nesci has lectured from coast-to-coast for such organizations as The University of Arizona James E. Rogers College of Law, Arizona State University College of Law Alumni Association, University of Mississippi CLE Department, South Texas College of Law CLE Department, Arkansas Association of Criminal Defense Lawyers, Arizona Attorneys for Criminal Justice, Arizona Public Defenders Association, California Attorneys for Criminal Justice, City of Phoenix Public Defender's Office, Colorado Criminal Defense Bar, Florida Association of Criminal Defense Lawyers, Indiana Public Defender’s Council, Kansas Association of Criminal Defense Lawyers, Louisiana Association of Criminal Defense Lawyers, Maricopa County Bar Association, Maricopa County Public Defender's Office, Maryland Criminal Defense Attorneys Association, the Mexican-American Bar Association at Loyola, the National Association of Criminal Defense Lawyers, the National College for DUI Defense, the Nebraska Criminal Defense Attorney’s Association, the Nevada State Bar Association, the New York State Bar Association, the Ohio Association of Criminal Defense Lawyers, the Pima County Bar Association, the Pima County Bar Association Young Lawyer’s Division, the Texas Criminal Defense Lawyers Association, the Tucson City Public Defender’s Office, the Tulare County (California) Public Defender’s Association, the Utah Criminal Defense Lawyers Association, and the Washington Foundation for Criminal Justice. He has taught seminars on the subjects of Ethics, 4th Amendment Law, Drug Recognition Evaluations (DUI-Drugs/DRE), Cross-Examination, Trial Tactics, Jury Selection, Field Sobriety Testing, Driving Behavior, Blood Alcohol Calculations, Opening & Closing Arguments, Source Code Litigation, Frye & Daubert Challenges, Intoxilyzer 8000 Operator’s Course, Headspace Gas Chromatography, Blood and Breath Testing. He has represented former Supremes lead singer Diana Ross and Tampa Bay Buccaneers' Tight-End Jerramy Stevens on Extreme DUI charges and fitness guru Richard Simmons on an assault charge. Mr. Nesci lives in Tucson with his wife and twin daughters. He is an honorably discharged veteran of the U.S. Navy where he spent much of his time working as an electrician in the Philadelphia Naval Shipyards. His interests are traveling, fine wines, vintage port and fast cars. He is an amateur race car driver, an accomplished mechanic, and a Corvette fanatic.

If you would like to contact the author, please visit: http://www.azdefense.com/


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