In a recent Arizona DUI case, a defendant appealed his conviction for aggravated driving under the influence. The arrest occurred just after midnight when the police arrested him for driving under the influence and performed an inventory search of his car where they found a pill bottle that contained Oxycodone. The defendant was taken to the police station where he consented to a blood draw. The blood alcohol level was .037, and he had 29 nano-grams per milliliters of Oxycodone in his blood. At his time of the arrest, the defendant’s driving privileges were suspended and he was indicted for a count of aggravated DUI while impaired to the slightest degree, as well as aggravated DUI while Oxycodone or its metabolite was in his body and possession of Oxycodone. The last count was dismissed before trial.
The defense presented evidence at trial that a prescription for Oxycodone had been filled shortly before, and the amount found in his blood fell within the therapeutic range. He also asked for an affirmative defense jury instruction provide that someone using a drug as prescribed by a licensed medical practitioner wouldn’t be guilty of driving while drugged. The prosecutor argued that in order to be entitled to this affirmative defense, the defense had to prove that he had a prescription prescribed by a doctor qualified to prescribe and the defendant took it as prescribed. The prosecutor agreed evidence of the prescription or printout should be allowed, but argued that there had been no evidence shown about the doctor and his qualifications or that he was taking it as prescribed. The defendant’s attorney disagreed.
The court removed the affirmative defense instruction because it found that the prescription records bearing the doctor’s name weren’t certified and the defendant hadn’t shown evidence that the prescriptions were made by a licensed medical practitioner under the titles listed in the law. Also the defense failed to provide evidence about whether or not the Oxycodone was being used in accordance with the actual prescription. The jury found the defendant not guilty of aggravated DUI while impaired to the slightest degree. However the defendant was found guilty of aggravated DUI with Oxycodone or a metabolite in his body and was sentenced to four months in jail and 30 months on probation.
The defendant appealed and argued only that the lower court had permitted the prosecution to ask a forensic scientist an improper question. The exchange involved the prosecutor asking the scientist if she’d get in a car knowing that the driver had the blood alcohol level and Oxycodone levels the defendant had. The scientist had answered she wouldn’t personally do so. The defendant argued this was improper because it was the expert’s personal opinion rather than a professional opinion. The appellate court disagreed but found that the requested affirmative defense applied. The prescriptions printout included the doctor’s name and the pharmacist’s name, and the defense expert had provided the opinion that based on the printout and blood analysis report that the defendant’s use was consistent with therapeutic use.
The appellate court disagreed with the prosecution and lower court, finding he’d presented enough evidence upon which the jury could rationally find he’d met the elements of the affirmative defense. The prosecutor had mentioned to the jury it might hear that the defendant possibly had a prescription for the Oxycodone, but it didn’t matter because he was impaired by the Oxycodone and an alcohol mixture and referenced the irrelevance of the prescription during closing statements which misled the jury on the law and no instruction was given to correct the misleading argument. The appellate court ordered the conviction vacated.
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