Under Arizona law, the State must prove that the person was driving or in actual physical control of the vehicle and that they were impaired by any substance to the slightest degree or had a specific BAC above the legal limits. This would be 0.08 for a DUI charge, 0.15 for an Extreme DUI charge, and 0.20 for a Super Extreme DUI charge. Arizona also has what is called an “impaired to the slightest degree” statute. With any DUI charge, they have to prove that someone was driving or in actual physical control of the vehicle, that they consumed the substance whether it was alcohol, drugs, or even prescription drugs, and that they were impaired to the slightest degree or their BAC was above those limits within two hours of driving.
They don’t have to prove what the BAC was while they were actually driving, just that it was above those limits within the previous two hours since driving. They use the Intoxilyzer breath machine and blood draw to get that proof. If the substance found in their blood was a prescription medication and we could prove that they did have a legitimate prescription then that’s what we call an affirmative defense to the drug DUI. The drug DUI charge would then be dismissed, but they could still be prosecuted under the “impaired to the slightest degree” statute. Even if you have taken the substance legally, it’s still a DUI if you are impaired to the slightest degree.
An officer can only pull a person over based on reasonable suspicion that they have committed some kind of traffic or criminal offense. After the stop and making contact with the driver, typically the officer will note in their report that they could smell the odor of an alcoholic beverage coming from the vehicle or from the person’s breath. Sometimes they will note that they saw an open container in the vehicle. They will ask the driver if they have been drinking. Most people at that point will admit that they drank something but claim that it was only a little bit or that a lot of time has passed. The officer will then look for other indications such as bloodshot watery eyes, slurred speech, or anything else that would raise a suspicion that the person is driving under the influence.
If they see any of those things, they will ask them to get out of the vehicle and perform the standardized field sobriety tests. At this point, a person has the right to refuse the field sobriety tests. In Arizona there’s no repercussion for refusing to take those tests. The three tests that they typically do are the horizontal gaze nystagmus test, the one leg stand test, and the walk and turn test. In the horizontal gaze nystagmus test, the officer is looking for nystagmus which is an involuntary jerking of the eye. There are a number of things that can cause nystagmus other than alcohol, including head injuries and other medical conditions. They only use nystagmus as one indicator of possible impairment but they have to have more proof of impairment to go along with it. In the vast majority of police reports that we read, the officers will note the smell of alcohol, admission of drinking, bloodshot watery eyes, and slurred speech.
When they do the horizontal gaze nystagmus test, they hold up something for the person to look at and they move it back and forth. They’re looking for more than one thing in this test, but primarily for the involuntary jerking of the eyes because people can’t fake or beat that test. You either have that involuntary jerking or you don’t; you can’t really control it if you are impaired. There are up to seven clues that an officer can see in the horizontal gaze nystagmus test. They have to see at least two to validate that the person may be impaired.
They will then have them do the walk and turn test. Before all of these tests, the officers are supposed to explain clearly what the instructions are and what the person is supposed to do and ask the person if they understand what they’re supposed to be doing. In the walk and turn, it’s a series of 9 steps forward on either an imaginary or straight line and then you turn and take nine steps back.
There are a number of things that the officers are looking for: whether the person is touching heel to toe, whether they are using their arms to balance, if they do a proper turn, if they take the proper number of steps. There are a number of things they look at, and again they need to see at least two indicators in order to say that the person may be impaired.
They would then do the one leg stand test. They’ll instruct the person to raise one foot at least six inches off the ground while staring at their foot, keeping their arms to their sides, and counting one thousand up to 30. The officers are trying to see whether they have to use their arms to balance, whether they have to put their foot down during the test, how long they’re actually able to count, and if they actually do get to 30.
At that point, if the officer has seen enough indicators to place someone under arrest they will usually ask them to blow into a portable breath testing machine if they have access to it. In Arizona a person has the right to refuse that portable breath test without repercussion. At that point, whether they refuse the test or not, the officer will typically place them in the back of the car, read their Miranda rights off a department issued card, and place them formally under arrest.
For more information on DUI Charges In The State Of Arizona, an initial consultation is your best next step. Get the information and legal answers you’re seeking by calling (480) 616-8229 today.