Earlier this month a Mesa woman was arrested on suspicion of aggravated driving under the influence of drugs while her one-year old son was a passenger in the vehicle. According to the news report, the driver crossed over a sidewalk and careened into a propane tank. The woman had a prescription for Oxycodone which instructed her to take one pill every four hours as needed. She allegedly took three of the pills, as well as Xanax, about six hours before the crash.

The incident is an all too familiar story, but it gives us the opportunity to discuss some common legal issues associated with charges of driving under the influence, and to dispel some common misconceptions concerning DUI charges in general, and aggravated DUI in particular.

DUI and prescription drugs. Under A.R.S. 28-1381, it is unlawful to drive a vehicle “[w]hile under the influence of . . . any drug . . . if the person is impaired to the slightest degree.” The statute goes on to state that

“It is not a defense to a charge of a violation of subsection A, paragraph 1 of this section that the person is or has been entitled to use the drug under the laws of this state.”

As a result, if you are driving while impaired as the result of taking a prescription drug, the DUI charge is not mitigated by the fact that the drug was being taken pursuant to a valid prescription from a physician, even if you have taken the drug as prescribed. In the case of the woman from Mesa, while she allegedly abused the prescription, either by taking more Oxycodone than directed by the doctor, or by combining it with another drug, if she was impaired by taking the substance, her alleged overconsumption of drugs is essentially irrelevant to the underlying DUI charge.

Aggravated DUI with a child passenger. When people hear about “aggravated” DUI, they may think it relates to the level of intoxication of the driver of a vehicle. In fact, aggravated DUI in Arizona has nothing to do with how impaired a driver is, as long as impairment is established. It relates, rather, to the circumstances under which the person is operating a vehicle. The level of intoxication may result in a charge of “extreme” DUI under A.R.S. 28-1382. Aggravated DUI, on the other hand, involves driving under the influence coupled with any of the following situations:

  • Driving with a suspended, canceled, revoked or, in some cases, a restricted license.
  • The DUI is the third or subsequent DUI within a period of 84 months.
  • Driving while under a court order to install and use an ignition interlock device.
  • Driving with a child under the age of 15 in the vehicle.

The bottom line is that aggravated DUI involves not how impaired you are, but rather what you do while driving, what your prior DUI is, or what restrictions or limitations exist on your driving privileges.

The level of the offense. The difference between a simple DUI and an aggravated DUI has implications that involve more than merely the name of the offense – the difference in potential penalties is substantial. In that regard, DUI, without more, is a misdemeanor. Aggravated DUI is a felony.

If you have been charged with DUI, contact an experienced Phoenix DUI lawyer to protect your rights.

Law Offices of David A. Black
40 North Central Avenue #1850
Phoenix, AZ 85004
(480) 280-8028

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