Once someone ingests a drug like cocaine or marijuana, the intoxicating effects wear off after a short time. However, that drug then is broken down by the body in a series of chemical processes. The active ingredient in a drug remains in a person’s system for a certain amount of time, depending on the drug.

When the body breaks down the active ingredient in a drug, there are byproducts called metabolites that are left behind. These metabolites, which register on a blood test, can remain in someone’s system for days or even weeks, depending on the drug and the frequency of use. The common consensus among experts is that most inactive metabolites do not cause intoxication; however, courts are only recently beginning to realize this. A recent case illustrates how one defendant’s conviction was reversed based on inaccurate and misleading jury instructions describing the effects of an inactive metabolite of cocaine.

more The Facts of the Case

The defendant was stopped by police, who suspected the plaintiff was under the influence of drugs or alcohol. The police administered a blood test, which showed that there was no alcohol in the defendant’s system, but that there were two inactive metabolites; one for marijuana and one for cocaine.

The State charged the defendant with driving under the influence. Specifically, the sub-section prohibiting driving while under the influence of “any drug … or its metabolite.” The defendant filed a motion to dismiss, claiming that the cocaine metabolite in the blood, BE, was non-intoxicating. The prosecution agreed that BE did not cause intoxication, but argued that the statute created “strict liability” for anyone who had the metabolite in their system. The defendant’s motion was denied, and the case proceeded to trial.

After the parties presented their evidence, the court instructed the jury, over the defendant’s objection, that they should find the defendant guilty if they believed he was in actual control of the vehicle and that there was the BE metabolite in his blood. The defendant renewed his motion for dismissal, but the judge again denied it. The defendant was convicted and appealed to a higher court.

On appeal, the defendant successfully argued that the court’s instructions to the jury were improper and that the error caused him prejudice. The court explained that previous case law in Arizona has held the term “metabolite,” as used in the DUI statute” refers to intoxicating metabolites only. Thus, the court was mistaken to instruct the jury that the defendant could be found guilty based on the presence of a non-intoxicating metabolite.

Have You Been Arrested for an Arizona DUI?

If you have recently been charged with an Arizona DUI, Attorney James E. Novak can help. At the Law Office of James E. Novak, we have been representing those facing serious Arizona DUI cases for over 17 years. We are proud of our work, and understand the importance of standing up for our clients’ rights are every opportunity. To learn more, call 480-413-1499 to schedule a free consultation today.

Additional Resources:

• A.R.S. § 28-1381

Other Articles of Interest from The Law Office of James Novak’s Phoenix DUI Blog: DUI And No Insurance: What You Should Know, Phoenix DUI Law Blog, May 1, 2018

Marijuana DUI: Financial Penalties in Arizona, Phoenix DUI Law Blog, April 1, 2018

How Your Breathing Can Affect A Breath Test

A breath test machine is designed to measure the amount of alcohol in a persons’ system by measuring the amount of alcohol in the breath. When the machine is blown into, it will give off a reading that translates to a BAC (blood alcohol content) level, if that level is higher than what is allowed by law, the driver can be arrested and charged with DUI. Because the test requires a person to blow into the device, how that person is breathing plays a role in the result. Taking a deep breath allows the alcohol stored at the bottom of your lungs to make its way to the top, and thus be the first thing measured by the testing device. The end result is a higher BAC level, otherwise known as a false positive. A more natural breathing pattern will yield a more accurate result and drivers should not allow an officer to require a large inhale before taking a breath test.

Possible Defenses To Breath Tests

Along with knowing the correct way to breathe prior to taking a breath test, there are also other common challenges that are made to test results, including:

• Questioning the maintenance of the equipment, and poking holes in the prosecution’s case by pointing out the machines have not been properly cleaned or maintained. A machine that is not kept properly will not give off a reliable result.
• Attacking the training of the person administering the test. Breath tests are supposed to be given by persons properly trained to do so, and it is within the suspect’s right to question that training. When training is lacking or inadequate, the test results may not be accurate.
• Examine the waiting time requirements. If those were not followed, the test results should be called into question.

You may also be able to challenge a breath test result by introducing evidence of the existence of another substance. Some medications can give off a false positive when taking a breath test, and certain medical conditions may also impact the way the test is read. Whatever the circumstances, it is always in your best interest to challenge a breath test and fight for your right to drive.

Where to Turn For DUI Defense Help

If you have been arrested for DUI, call the Law Offices of James E. Novak, P.C., for help. We focus on DUI and criminal defense, and have realized success in minimizing the negative implications a DUI arrest can have. Contact us online or call our office at (480) 413-1499.