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Know and Exercise your Rights if You are Stopped for DUI

Arizona Revised Statute 28-1381(a)(3) (otherwise known as driving under the influence of drugs) makes it a class one misdemeanor to drive or be in actual physical control of a motor vehicle while a drug or its metabolite is in your system. In other words a person can be found guilty of DUI in Scottsdale while being completely sober. This is especially true in cases involving marijuana where it can take a month or longer for the metabolite to clear out of the drivers' system after it was last taken. A conviction under 28-1381(a)(3) does not require any proof that the person is impaired even to the slightest degree. Nevertheless the penalties associated with a guilty finding are no less severe than those that come along with a conviction for driving while impaired.

28-1381(a)(3) charges demonstrate the importance of exercising ones right to refuse field sobriety tests exercising one's right to remain silent during questioning. All the police and the prosecutor essentially need to obtain a conviction under this law is proof that a drug or its metabolite is in the driver's system. This can ordinarily be established through a simple urinalysis test which can be very difficult to defend in court. Legally however the police may be unable to obtain a urine sample unless they have probable cause to believe that you are actually under the influence during their contact with you.

Typically police officers obtain a urine sample one of two different ways. Most commonly officers utilize Arizona's implied consent law under which a person arrested for DUI could face a driver's license suspension of 12 to 24 months if they refuse to provide a sample of blood, breath or urine after arrested for DUI. If the individual refuses to comply with the implied consent law the suspension will be imposed and the officer can obtain a search warrant by contacting a judge (often by telephone) and providing information regarding the traffic stop to the judge and requesting that the judge make a finding that probable cause exists thereby authorizing the judge to issue a search warrant. If a search warrant is obtained it often authorizes the police officers to use whatever reasonable force is necessary to obtain the bodily fluid sample.

Regardless of whether the police obtain a search warrant or use implied consent to obtain a bodily fluid sample they cannot move forward without probable cause. Probable cause is most commonly established during a DUI investigation through the administration of field sobriety tests. These tests include the finger to nose test, the one leg stand test and other tests including those that require you to follow the police officer's finger as it's passed back and forth horizontally. Motorists have the right to refuse these tests and in most cases should exercise that right. Poor performance on these tests can be used to form the basis of probable cause thereby allowing the officers to invoke implied consent or even obtain a search warrant. Because it can be difficult to dispute one's performance on these tests and the officer's assessment of your performance is subjective and not subject to verification, the better practice is to not participate in them.

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