Drug DUI Defense
A drug DUI charge can come as a shock, especially if you took medication your doctor prescribed or used marijuana legally. Arizona law treats these cases differently depending on the drug and the evidence, so the details matter.
We can help. Nova Law Group was built by a former Maricopa County Attorney’s Office felony prosecutor. We prepare every case as if it is going to trial, and we take a meticulous, aggressive approach, fighting from every angle, because the report is only one side of the story.
Talk to us before you talk to anyone else. Call (480) 405-6767. Consultations are free and confidential, and the earlier we are involved, the more we can do.
At a glance
- The law: A.R.S. § 28-1381(A)(1) covers driving while impaired to the slightest degree by any drug. Section 28-1381(A)(3) covers driving with a drug listed in A.R.S. § 13-3401, or its metabolite, in your body.
- How it is classified: A class 1 misdemeanor (§ 28-1381(C)).
- Possible sentence (first offense): At least 10 consecutive days in jail (the judge may suspend all but 1 day after a court-ordered program), plus a fine of at least $250 and $1,000 in assessments.
- Where the case is heard: A city (municipal) court or a justice court, depending on where the arrest happened.
- What to do now: Your MVD hearing request has 30 days to reach MVD. List every medication you take and who prescribed it.
What the law says
Two forms of § 28-1381 apply to drugs, and they work differently. A complaint may include both, so it helps to know what each one requires.
Impaired by a drug: § 28-1381(A)(1)
The State must prove that you drove or were in actual physical control of a vehicle while under the influence of any drug, alone or combined with alcohol or other listed substances, and that you were impaired to the slightest degree. Under § 28-1381(B), it is not a defense to this form that you were entitled to use the drug under Arizona law.
Drug or metabolite in the body: § 28-1381(A)(3)
This form bars driving or being in control while any drug defined in § 13-3401 or its metabolite is in your body. Its text does not require proof of impairment. Under § 28-1381(D), a person using a drug as prescribed by a medical practitioner is not guilty under (A)(3).
The § 13-3401 list is broad. It includes marijuana, dangerous drugs such as methamphetamine, amphetamine and alprazolam, and narcotic drugs such as fentanyl, cocaine and oxycodone.
Marijuana
Adults 21 and older may possess up to one ounce of marijuana, with no more than five grams as concentrate, under A.R.S. § 36-2852(A). That law does not allow driving while impaired to even the slightest degree by marijuana (A.R.S. § 36-2851(3)). For metabolites, § 36-2852(B) says a person is guilty under § 28-1381(A)(3) "only if the person is also impaired to the slightest degree."
The odor of marijuana alone does not create reasonable suspicion of a crime (§ 36-2852(C)), but that rule does not apply when an officer is investigating a DUI. For general background, see Cornell LII Wex: controlled substance and Cornell LII Wex: driving under the influence (DUI), which are not sources of Arizona law.
How it is classified
Every form of § 28-1381 is a class 1 misdemeanor, with a general maximum of six months in jail (A.R.S. § 13-707(A)(1)) and a $2,500 fine (A.R.S. § 13-802(A)). The DUI statute sets the minimums described below.
| Form | What the State must show | Defense or limit in the statute |
|---|---|---|
| § 28-1381(A)(1) | Any drug, plus impairment to the slightest degree | Legal entitlement to use the drug is not a defense (§ 28-1381(B)) |
| § 28-1381(A)(3) | A § 13-3401 drug or its metabolite in your body | Use as prescribed by a medical practitioner (§ 28-1381(D)) |
| § 28-1381(A)(3), marijuana | Marijuana metabolites or components, plus impairment to the slightest degree | Impairment required by § 36-2852(B) |
| Aggravated DUI | A DUI plus a circumstance listed in A.R.S. § 28-1383 | Felony; see our aggravated DUI page |
Possible penalties
First drug DUI
A first conviction carries these minimums under § 28-1381(I). They apply subject to the jail reduction described below.
- At least 10 consecutive days in jail, with no probation or suspension unless the entire sentence is served.
- A fine of at least $250 and two assessments of $500 each.
- Traffic survival school, and community restitution if the court orders it.
The judge may suspend all but 1 day of jail if you complete a court-ordered alcohol or other drug screening, education or treatment program, or evidence-based psychotherapy (§ 28-1381(J)). The judge must order screening and may order education or treatment (A.R.S. § 28-1387(B)).
Ignition interlock in a drug case
The MVD interlock requirement in § 28-1381(I)(6) applies "if the violation involved intoxicating liquor." In a case that does not involve alcohol, the court may still order an interlock (§ 28-1381(P)). Interlock periods are set in A.R.S. § 28-3319.
A second offense
A second DUI within 84 months, drug or alcohol, carries at least 90 days in jail and a one-year revocation, among other terms (§ 28-1381(K)). See our second DUI page.
The MVD case
Two clocks run after the arrest: the criminal case and the MVD case. Under A.R.S. § 28-1385(A)(2)(d), MVD can suspend your license when a § 13-3401 drug or its metabolite is in your body, unless you have a valid prescription for it. A request for a hearing or summary review "must be received by the department within thirty days after the date of the notice" (§ 28-1385(G)(2)(c)).
The suspension is at least 90 days, or at least 30 days plus 60 days restricted if you meet the conditions in § 28-1385(I). The hearing is narrow and limited to the issues in § 28-1385(M), which include whether a drug or metabolite was present without a valid prescription. A refusal brings a longer suspension; see our DUI refusal page.
Consequences beyond the sentence
- Record: A set-aside under A.R.S. § 13-905 sets aside the judgment of guilt, but the conviction can still be used as a prior and by MVD (§ 13-905(E)). See set-asides and record sealing.
- Future cases: A drug DUI counts as a prior for the 84-month rules, the same as an alcohol DUI.
- Employment and licensing: Driving jobs, safety-sensitive work and professional licenses may be affected by a drug-related conviction.
- Immigration: If you are not a U.S. citizen, talk to an immigration lawyer before you accept any plea. A drug-related conviction can raise its own immigration questions.
Avoiding jail is not the same as avoiding a conviction. A sentence with 1 day of jail still leaves a DUI conviction on your record, with the license and other effects that follow.
How we defend drug DUI cases
Drug DUI cases often turn on science and on the gap between "present" and "impaired." Depending on the form charged, we may examine:
- The stop: Whether it was lawful, and what the officer observed before the DUI investigation began.
- Impairment evidence: Driving, field sobriety tests and any drug recognition evaluation. Fatigue, illness and nerves can look like impairment.
- The lab report: What was found, whether it was an active drug or a metabolite, and how much. For marijuana, § 36-2852(B) also requires impairment.
- The blood sample: How it was drawn, stored and tested. If blood was taken at a hospital for any reason, a portion can be given to police on request when there is probable cause (A.R.S. § 28-1388(E)).
- Prescriptions: The § 28-1381(D) defense is written for the (A)(3) form, so your records matter.
- Mitigation: Early screening or treatment may support the jail reduction in § 28-1381(J).
We also watch the MVD deadline with you. Every case is different, and the outcome depends on the evidence.
Why Nova Law Group
Nova Law Group was built by Ryan Tait, a former Maricopa County Attorney’s Office felony prosecutor. The practice is criminal defense first. We keep caseloads deliberately low, which means the lawyers on your case have time to actually watch the video and read the reports line by line. We take cases to trial when trial is the right pressure. Overcharging happens, and a case that is genuinely prepared for trial changes the conversation with the prosecutor. Most criminal cases are quoted as a flat fee. Consultations are free and confidential.
Common questions
Yes, if the State proves impairment. Adult use is lawful under § 36-2852, but § 36-2851(3) does not allow driving while impaired to even the slightest degree. For the metabolite form, § 36-2852(B) also requires impairment.
Under § 28-1381(D), a person using a drug as prescribed by a medical practitioner is not guilty of the (A)(3) form. You can still be charged under (A)(1) if the State claims the medication impaired you. Bring your prescription records to your first meeting with us.
After a refusal, the test is not given except under § 28-1388(E) or a search warrant (A.R.S. § 28-1321(D)(1)). That means officers can seek a warrant, and a sample drawn at a hospital may be provided to police on request.
Sources
Arizona statutes link to the official text on azleg.gov, the Arizona State Legislature’s website. Federal law and general legal references link to Cornell Law School’s Legal Information Institute (LII). Laws change, so the version in effect on the date of your case controls.
Arizona law (azleg.gov)
- A.R.S. § 28-1381: Driving or actual physical control while under the influence; trial by jury; presumptions; admissible evidence; sentencing
- A.R.S. § 28-1383: Aggravated driving or actual physical control while under the influence; county jail program; annual report; violation; classification
- A.R.S. § 28-1385: Administrative license suspension for driving under the influence or for homicide or assault involving a motor vehicle; report; hearing
- A.R.S. § 28-1387: Prior convictions; alcohol or other drug screening, education and treatment and evidence-based psychotherapy; license suspension
- A.R.S. § 28-1388: Blood and breath tests; violation; classification; admissible evidence
- A.R.S. § 28-1321: Implied consent; tests; refusal to submit to test; order of suspension; hearing; review; temporary permit; notification of suspension
- A.R.S. § 28-3319: Action after license suspension, revocation or denial for driving under the influence or refusal of test
- A.R.S. § 13-707: Misdemeanors; sentencing
- A.R.S. § 13-802: Fines for misdemeanors
- A.R.S. § 13-905: Setting aside judgment of convicted person on discharge; application; release from disabilities; certificate of second chance
- A.R.S. § 13-3401: Definitions
- A.R.S. § 36-2851: Employers; driving; minors; control of property; smoking in public places and open spaces
- A.R.S. § 36-2852: Allowable possession and personal use of marijuana, marijuana products and marijuana paraphernalia
Cornell Legal Information Institute
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If you have been arrested, charged, or contacted by a detective, the decisions you make in the first few days matter. Nova Law Group defends misdemeanor and felony cases in the Superior Court and in municipal and justice courts across Maricopa County.
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