What is DUI?
DUI or driving under the influence is a crime or offense of operating a motor vehicle under the influence of alcohol or other drugs. Drunk or impaired driving is taken seriously by all states. If you have been convicted with a DUI, you might lose your license, pay fines and/or face jail time. DUI representation is important to defend your rights and minimize damage.
What happens after you get arrested for DUI?
Whether you got arrested or issued a summons to court by the police officer, you are now facing possible jail time, hefty fines, loss of your driving privileges, probation, and/or some other possible painful consequences. Every case is different and there is no checklist to download or follow. It’s is best to contact an experienced DUI Lawyer who will guide you through and represent you as needed.
DUI in Arizona
The State of Arizona takes all DUI prosecutions seriously. Impaired driving may escalate into more severe crimes, depending on the facts and what transpires. Driving Under the Influence of Alcohol or Drugs in Arizona is a Class 1 Misdemeanor for a first-time offense, unless some additional aggravating elements are present. The reality of DUI cases is that many upstanding citizens commit this offense at some point. Some people do not get arrested for it, and they go on with their lives not thinking twice about it. However, those who do get arrested quickly realize that an arrest and conviction for DUI/DWI in Arizona will have significant consequences.
It is very important to consult with, and retain an aggressive, experienced Arizona DUI/DWI attorney who is knowledgeable on how these cases are investigated, prosecuted, and defended. -- D. Oliverson
Misdemeanor DUI Offenses in Arizona
DUI under A.R.S. 28-1381(A)(1) through (A)(4). Driving Under the Influence of Alcohol or Drugs in Arizona is governed under ARS 28-1381(A), which states:
It is unlawful for a person to (A) drive or (B) be in actual physical control of a vehicle in Arizona under any of the following circumstances:
- While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance, or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree. ARS 28-1381(A)(1).
- If the person has an alcohol concentration of 0.08 or more within two hours of (A) driving or (B) being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle. ARS 28-1381(A)(2).
- While there is any drug defined in [ARS] section 13-3401 or its metabolite in the person’s body. ARS 28-1381(A)(3).
- If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver license as defined in section 28-3001 and the person has an alcohol concentration of 0.04 or more. ARS 28-1381(A)(4).
Were you driving or in actual physical control of a vehicle?
DUI statutes in Arizona require a person to be either driving, or be in “actual physical control” of a vehicle!
“Driving” means exactly what it states. This is the typical situation of a person being stopped while in the act of driving. There is not usually much factual dispute as to this element when the person is stopped while driving. However, a prosecution where a legitimate defense of “actual physical control” is raised may present some difficulties.
An actual physical control involves situations where law enforcement, or another witness, does not observe a person driving. This can occur in situations where a person’s vehicle is disabled for some reason, or is parked at a location with the person within a short proximity. There is a factual analysis in determining whether or not someone is in “actual physical control” of a vehicle. This is based on a 1995 Arizona Supreme Court case that ruled whether or not a driver could be found in actual physical control of a vehicle depended on the “totality of the circumstances,” which meant a jury was to look at all available facts (not just where the vehicle was, and whether the keys were in the ignition).
In fact, juries should consider the “totality of the circumstances” to determine whether the person’s current or imminent control of the vehicle presented a real danger to himself or herself or others at the time alleged. Some of the factors to be considered in a “totality of the circumstances” analysis are: Was the vehicle running? Was the ignition on? What was the location of the keys? What position was the driver found in? Was the driver awake or asleep? Were the headlights on or off? Did the driver voluntarily pull off to the side of the road? What was the time of day? Was the heater or air conditioner on? Were the windows up or down? Was there any explanation for the circumstances shown by the evidence?
Field Sobriety Tests and trying to prove you are impaired comes next…
Under ARS 28-1381(A)(1), the law does not require the person to have a specific amount of a substance (alcohol or drugs) in their system (however, if a person has a BAC of .08 or greater in their system, there is a rebuttable presumption that the person is impaired). Rather, this is a factual determination and law enforcement will identify factors which they feel are indicative of someone being impaired.
A person’s driving behavior may be noted (e.g., Were they swerving or weaving within their own lane, were they speeding or traveling at a speed under the speed limit, were their lights on?). The officer will also take note of the person’s appearance (e.g., bloodshot watery eyes, slurred speech, inability to follow instructions, inability to maintain balance, etc.), and use a totality of the circumstances approach in making an arrest decision. Officers further develop these observations while conducting Standardized Field Sobriety Tests (FSTs).
A person is under no obligation to perform FSTs, and they rarely work in anybody’s favor, as they are tests requiring people to balance, and divide their attention between balancing and following instructions from a law enforcement officer. Dividing attention is a huge focus for law enforcement in these investigations, as one must be able to effectively divide their attention while operating a motor vehicle. Alcohol generally impacts one’s ability to divide their attention. Nevertheless, these Field Sobriety Tests do nothing but provide officer’s an ability to document a lack of balance and a lack of an ability for one to divide their attention. This will almost always lead to an arrest.
BAC and the significance of BLOOD ALCOHOL CONCENTRATION OF 0.08 WITHIN TWO HOURS OF DRIVING
Under ARS 28-1381(A)(2), to be convicted, a person must have a Blood Alcohol Content (BAC) of 0.08 or greater within two hours of driving or being in actual physical control of the vehicle.
Alcohol consumption that is placing the person above a 0.08 BAC must have been consumed before the person drove or was in actual physical control of the vehicle. Indeed, if a person consumes alcohol after driving during that two-hour window, generally prior to being contacted by law enforcement, the State will likely not obtain a conviction, and may be hard-pressed to go forward. Also, there may be an issue if law enforcement did not obtain the sample of breath or blood within two hours of the person driving or being in actual physical control of the vehicle. This is most likely the case if the person’s BAC is close to the 0.08 threshold.
However, law enforcement, through their criminalists, will be able to do a “retrograde”, and relate-back the BAC to within two hours of driving, and may even give an opinion as to what the BAC was a the time of driving, or being in actual physical control of the vehicle. Law enforcement makes this determination based on a general elimination rate of alcohol in the human body.
However, there are other factors that should be considered that law enforcement does not always have access to, including: when the person last ate, what the person last ate, how much the person had to drink, what the person had to drink, when the person had their first drink, and when they consumed their last drink. Law enforcement will attempt to obtain this information out of a person during a DUI “interview.” This will make their retrograde more accurate or reliable. A person who is under investigation should always consult an attorney immediately before the investigation starts, if possible. Through a quick consultation, a person will be advised that they must provide a sample of their blood, breath, or urine, but that they can refuse the field sobriety tests and the portable breath test in the field, and refuse to answer questions, with the exception of providing their real name and identification. It will never work in anybody’s advantage to lie to law enforcement. However, a lie is not necessary when someone has a right to remain silent.
Get representation from a former police officer, and judge, and former felony prosecutors at Oliverson & Huss Law
You might lose your license
It is important to know that after the traffic stop, law enforcement will either release the person, or place them under arrest for DUI, and transport them to either the police department, jail, or a DUI van. Upon arrival, the law enforcement officer will read the Admin Per Se Implied Consent Affidavit. This affidavit will inform the person that they must submit to a test of their blood, breath, or urine (at the law enforcement officer’s discretion), and if the BAC comes back at 0.08 percent or greater, then the person will lose their Arizona driving privileges for a period of ninety days. However, the Admin Per Se Implied Consent Affidavit will also instruct that if the person refuses to submit to the specified test, the person will lose their license for a period of twelve months.
Your right to speak with an attorney
Law enforcement must give a person an opportunity to consult with an attorney prior to submitting to the tests. However, this consultation cannot “unreasonably delay” the investigation. Generally, law enforcement will place the person in a room, with a phone and a phone book, for a period of time to reach out to an attorney for advice. If law enforcement does not give the person an opportunity to consult with an attorney, a suppression of the results of the test would be the remedy. In addition, law enforcement must give the person an opportunity to obtain an independent test, and must advise the person of such. A failure of law enforcement to do so may result in a dismissal of the case.
The Admin Per Se Implied Consent Affidavit form that law enforcement will produce also provides a temporary fifteen-day license should a breath sample be above .08, or the chemical test is refused. This is another reason it is very important for a person to contact an attorney immediately, as there are certain time frames that need to be met for license purpose. Specifically, an attorney would immediately know to file a Notice of Appearance and Request for Executive Hearing with the Arizona DMV, which would automatically extend the fifteen-day temporary license until at least the time the hearing is set.
You should know this about the INTOXILYZER BREATH TEST
The State generally obtains breath samples from people through the use of the intoxilyzer breath test. The Intox is an instrument used to analyze the alcohol content in a person’s breath. When a person consumes alcohol, the alcohol enters into the person’s bloodstream. Oxygen-rich blood circulates around the lungs, which translates into the Intox being able to read the alcohol concentration blown out through someone’s breath.
The State must properly maintain the Intox, and quality assurance and periodic maintenance records must be kept memorializing the periodic checks. Further, the law enforcement officer must go through a specific checklist, and specific protocol from the time they see the “vehicle in motion”, to the time they complete the investigation. For example, there must be a “deprivation period” provided (where law enforcement ensures the person does not regurgitate, put anything in their mouth, etc.) prior to having the person submit to the breath test.
Law enforcement sometimes takes shortcuts with this, and will count the deprivation period as occurring when the officer is driving and the person is in the back seat, not fully being observed by the officer. Further, there are specifics that must be present for a breath test to be admissible in trial. It is very important to consult with an experienced attorney, as DUI investigations and prosecutions can be complex with a number of issues not known by people inexperienced in these matters.
A few words about DRUG OR DRUG METABOLITE DUI
This is known as a “drug DUI”. Although there is no doubt there are significant numbers of arrests for Driving Under the Influence of Marijuana, Heroin, Methamphetamine, and other street drugs, this type of offense is commonly prosecuted in situations where people are prescribed the drugs.
A prescription for a drug will serve as a defense under this specific section ARS 28-1381(A)(3). However, pursuant to ARS 28-1381(B), it is not a defense to an “A(1)” or an “impairment to the slightest degree” DUI that the person is or has been entitled to use the drug under Arizona law. As such, even if a prescription is in place, a person cannot operate a motor vehicle in the State of Arizona if that prescription drug impairs their ability to operate a vehicle to the slightest degree.
In a “drug” DUI, there is not a specific threshold cutoff (like a 0.08 for alcohol). The result will be reported in amounts on the scientific examination report generated by law enforcement, and an expert will likely be able to give opinions based on their training and experience if a drug is within or outside of the therapeutic level. Further, an expert may be able to give opinions as to what impact those levels would generally have on an individual (all of which may be impacted by years of use, how often used, and biological factors concerning the person such as height, weight, etc.).
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