logo-small

Facebook

Copyright 2019 Oliverson & Huss, PLLC.
All Rights Reserved.

24/7 365 Days

Attorney is Available Now.

480.616.8229

Call Us for a Free Consultation

Facebook

Search
Menu

DUI

Driving under the influence of alcohol or drugs in Arizona

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:

 

  1. 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).
  2. 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).
  3. While there is any drug defined in [ARS] section 13-3401 or its metabolite in the person’s body. ARS 28-1381(A)(3).
  4. 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.).

 

 

More about DUI:

 

Frequently asked questions about DUI:

Have you been arrested for DUI? Do you need legal help?

These answers are meant to provide general information regarding common questions asked to criminal defense lawyers. However, every case must be analyzed individually. This information is not a substitute for consulting with an experienced lawyer about. 

How to BEAT a DUI

There are multiple ways to beat a DUI in Arizona. First, you must be aware of the Arizona laws and your rights. Your case should be examined from the beginning, starting at the traffic stop. The officer must be able to justify the stop by having a reasonable belief that the driver committed a violation or criminal offense. The officer must also show cause for arrest. If the officer cannot establish grounds for your arrest, the case could be dismissed despite any test results obtained.

Avoid these mistakes made after a DUI Arrest

Time is of the essence. The most common mistake people make after a DUI arrest is waiting too long after the arrest to contact an attorney. There are specific time limits that could impact your driving privileges, as soon as fifteen days from the arrest. It is absolutely critical to contact an attorney immediately. The attorney can begin tackling the issues while advising you on the next steps.

How to Prepare for DUI/DWI in Court?

Once you are arrested and booked into custody, you will usually have a hearing within 24 hours. This first appearance is where the judge will evaluate any issues with bail and set the terms of your release. Bail is usually granted, but the bail amount varies from case to case. It is a good idea to remain diligent and contact an attorney immediately to discuss the next steps in your matter and how to best prepare for your next court date.

Do I Have to Talk to Law Enforcement?

You have legal rights, and it is vital to be aware of your rights and how to exercise them. You have the right to decline questioning from an officer when pulled over for a DUI and it is highly recommended you utilize these rights. Instead of providing an answer to any questions, you can remain polite and offer your information and ask if you are free to go. If you are not free to go, you are under investigation. It is best to remain silent and request a lawyer to prevent potentially incriminating yourself.

Can I Refuse a Breathalyzer?

Arizona is an “implied consent” state. This means that by driving on the highways in Arizona, you agree that if you are arrested for a DUI-related offense, you will submit to a breath, blood, or urine test. The test is to provide the level of alcohol or other substances in your system. However, your right to refuse to a breathalyzer depends on whether or not you are officially under arrest.<br /> You can decline a breathalyzer as long as you have not been placed under arrest. If you refuse a breathalyzer or other testing after you are arrested, it will result in your license being suspended. However, you should not refuse a second breath or chemical test at a police station. Doing so could impose severe consequences to your driver’s license and case outcome.

What Are Some Defenses for DUI?

There are numerous defenses to a DUI. One potential defense could be to challenge the legality of the initial traffic stop. The officer must be able to articulate the reason for stopping you and the reason for arresting you. The accuracy of the breathalyzer and blood test can also be challenged. It is critical to contact an experienced DUI attorney that is familiar with all available defenses to best represent you.

How do I choose a DUI / criminal Defense Lawyer?

It is critical to choose a DUI / criminal defense attorney you trust. Our attorneys are experienced, committed, and have the resources to handle your case effectively. Our firm works diligently and understands the seriousness of DUI charges. It is essential to choose an attorney that will work to customize a defense strategy and fight for your rights.

Top Questions to Ask a DUI Lawyer

It is crucial to choose an experienced DUI attorney that you trust to best represent you. When you have your initial consultation with an attorney, there are a few questions to ask. Your questions will depend on your specific situation, but here are a few top questions: Do you specialize in DUI law? How do you think you can help me?<br /> What factors work in my favor, and what factors work against me?<br /> In past DUI cases, have you been able to get DUI charged dropped or reduced to a lesser offense?

Are breath test results always accurate?

DUI attorneys commonly challenge a breath test's accuracy. The results are only permissible if the proper testing procedures are appropriately followed. There are many discrepancies with a breathalyzer. The equipment must be appropriately calibrated and maintained. Since the current legal limit (Blood Alcohol Content) in Arizona is 0.08, the operator must understand the proper use and avoid inaccurate readings.

How can I get auto insurance after a drunk driving conviction?

An arrest will not impact your driving records or cause points. Unfortunately, a DUI conviction will remain on your driving record for ten years. In Arizona, a DUI conviction can cause a significant spike in your insurance premiums. The insurance company will consider several factors when determining the premium. The factors include the driver’s age, marital status, and age. Insurance companies will also evaluate the individual’s driving record before the offense. Some may offer a grace period for a first-time offense, primarily if they determine they are unlikely to repeat the offense.

What are the Long-term DUI Consequences?

Driving under the influence can have detrimental and long-term consequences. A DUI conviction can follow you for a long time. It can prevent you from obtaining employment or result in losing your driving privileges. Fines in the state of Arizona could reach up to $2,500. A judge could also order you to alcohol counseling and screening tests. If convicted of a DUI, you may be required to install an ignition interlock device and cover the cost and installation.