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Do I have a chance to beat or plea down an aggravated Drug DUI charge in AZ when I was actually stone-cold sober?

Phoenix, AZ |

I have a medical marijuana card. Pot (a gram) was found in the trunk. I was stone-cold sober. I even blew a 0.00 on the Breathalyzer. I was driving with a suspended license and expired tags that got me pulled over. I got an alcohol DUI (0.08) in Jan 2012.

I took the field sobriety test and then I allowed them to draw blood. Thinking the whole time this stuff was going to clear me, because I was sober at the time. I also didn’t request a test for my defense because I didn’t know you could. It’s been 3 days. Is that too late? I didn’t know about the no tolerance laws here would apply to me since I was actually sober.

Do I have a chance to beat an aggravated DUI or a chance at a plea bargain? Doesn't actually being sober count? Or does it not matter under the law here?

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Attorney answers 7


You will have a MUCH better chance of prevailing or a better disposition with a good criminal attorney. Immediately contact a local AZ criminal law attorney - many offer free consultations. Do it ASAP

This is not intended to be legal advise or as legal representation. I am a California personal injury attorney . Be aware that every state has its own statute of limitations; and statutes & case laws that govern the handling of these matters.



Thank you for replying. So not a DUI attorney? Sorry, I have zero knowledge of this sort of stuff.


I agree with my colleague regarding obtaining an attorney. There is also the issue of a controlled substance in your system-which seems likely since there was a pot in your car and you have referred to it as a drug DUI. They would discover this through a blood test-as opposed to a breathalyzer.

This is not intended as individual legal advice and there is no attorney client relationship established by this answer. It is advisable that you seek individualized legal assistance. This is not a substitute for hiring an attorney.


Sounds like a good trial issue. Contact an attorney to discuss. Good luck.


Yes, do get a good attorney. You'll find the investment to be worth it.

This is only an Avvo answer. I am not getting paid to give this response and am basing this response only on the information provided to me in the above question.


So, my first question is, "have you been charged?" If you haven't, relax. You may not be charged with DUI, but you will likely be charged with unlawful possession, since the marijuana was in your car. Even if you have a medical marijuana card, you cannot keep it in your car. You must only use medical marijuana under specific circumstances, and you must keep it under lock and key where only you can get access to it.

If you have been charged with DUI, you case is defendable. The bad news is that under a recent Arizona Superior Court decision, if you have the metabolite of marijuana in your system while driving a vehicle, you can be charged with DUI, even if you are not impaired, or stone cold sober. So, if you've been using medical marijuana under legal circumstances, and if your blood test shows you have any marijuana metabolite in your system, you can be charged and convicted of DUI.

The best way to defend you is to examine the probable cause and the reasonable suspicion under which the police pulled you over and arrested you. I'd me more than happy to assist you.

The above statements are opinions only, and is not to be considered legal advise. No attorney client relationship has been formed by Mr. Schollian and any individual who asks questions on public or social media. No decision should be made regarding your legal rights unless and until you have retained legal counsel who can review documents and issues relating to your matter.


There are a lot of issues that you raise in your question. The first thing an Attorney would look at is the circumstances of the police stopping your vehicle. If there was no reasonable suspicion to stop your car, then there is a chance that an Attorney could argue that any evidence obtained after the illegal stop could be suppressed(including the blood taken). Second, if you did well on the field sobriety tests, then there may not have been probable cause to support them taking your blood.

Additionally, despite not being charged with a DUI yet, since you said that you have a medical marijuana card, I'm betting you'll be charged. This is because in Arizona even if you are sober, if the police finds any narcotic drug(or a metabolite of it) in your blood then you can get a DUI charge despite being sober. Since you say you have a medical marijuana card, I would assume that you have at least "inactive" THC in your blood. This type of THC cannot impair a driver, however, our Courts have found that a person can still be convicted of a DUI with inactive THC being the sole metabolite in their blood. These are trial issues, you should consult an Attorney because I anticipate you will be charged. An aggravated DUI carries a minimum sentence of 4 months in prison(even if you get probation) and thousands of dollars in fines. You will need an Attorney once you are charged.

Answers on Avvo are general in nature and do not constitute legal advice; specific answers require knowledge of all the facts. You should consult with an attorney to review all the facts specific to your case in order to receive advice upon which you can reasonably rely.


Recent case law in Arizona (ex rel Montgomery) has held that a person can still be DUI, even if they only have the non-psychoactive metabolite of THC (the one that doesn't make you impaired) in their blood. Unfortunately, that stuff stays in one's system for weeks. So, under the current state of Arizona law, you can have a medical marijuana card, be completely sober, but still be convicted of DUI if you just have the metabolite of THC that doesn't even impair you. The police know this, but they're not going to tell you, so long as you are cooperating and giving blood. This is yet another one of the "gotcha" tactics that the State of Arizona uses to generate as many DUI convictions as possible. DUIs are very serious BUSINESS for Arizona, because they are huge revenue generators... Yes, it's really all about the money. That is why they take them so seriously and why the law is the way it is. Basically, to all medical marijuana holders, under the current state of the law, you have to make a choice between driving or using marijuana. You simply cannot do both. The THC metabolite will get you convicted of DUI. Impairment has nothing to do with it any more.


Paul E Knost

Paul E Knost


Attention all medical marijuana holders who also drive: here is the current state of Arizona law. Is this justice? You decide! "Although these cases do not directly interpret the phrase "its metabolite," they stand for the proposition that HN5 § 28-1381(A)(3) must be interpreted broadly to appropriately effectuate the legislative purpose and intent underpinning the statutory language. Following this established precedent, we hold that § 28-1381(A)(3)'s language prohibiting driving with a proscribed drug or "its metabolite" includes the metabolite Carboxy-THC. See Hammonds, 192 Ariz. at 530 n.2, ¶ 6, 968 P.2d at 603 n.2 (reasoning that a "conviction [under § 28-1381(A)(3)] is sustainable for the marijuana metabolite," Carboxy-THC)." State ex rel. Montgomery v. Harris, 2013 Ariz. App. LEXIS 25 Court of Appeals of Arizona, Division One, Department D February 12, 2013, Filed No. 1 CA-SA 12-0211 Reporter: 2013 Ariz. App. LEXIS 25 | 654 Ariz. Adv. Rep. 11 | 2013 WL 504558

Paul E Knost

Paul E Knost


In other words: if you have ANY marijuana metabolite in your body, even the kind that does not impair you, which stays in your system for a LONG time, you are getting a DUI. Oh, I think they forgot to mention that in their ridiculous little TV commercials about DUIs. What is this government of ours really saying (behind closed doors)... "CHA CHING!!!!"

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